Federal Court of Australia

CHVS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 34

ORDERS

THE COURT DECLARES THAT:

1.    The First Respondent did not perform a duty required by s 501CA(3) of the Migration Act 1958 (Cth) (Migration Act) by purportedly giving the Applicant a notice on 23 May 2018 in relation to a decision made on 22 May 2018 to cancel the Applicant's visa under s 501(3A) of the Migration Act which did not comply with the requirements of reg 2.52(2)(b) of the Migration Regulations 1994 (Cth).

THE COURT ORDERS THAT:

1.    The Applicant’s application dated 31 March 2021 for an extension of time to appeal the Administrative Appeals Tribunal decision dated 31 May 2019 be dismissed.

2.    There be no order as to costs.

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

REASONS FOR JUDGMENT

KERR J:

Introduction

1    This is an application for an extension of time to appeal a decision of the Administrative Appeals Tribunal (the Tribunal) dated 31 May 2019. I discuss below whether the application should also be construed as including a decision of the Tribunal dated 17 January 2020. The Minister opposes the application and seeks that it be dismissed.

2    These reasons also address issues that came to the attention of the Court regarding the Full Court decisions in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 (EPL20) and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 (Sillars). But for the Minister having advanced the proposition that the application for special leave to appeal those proceedings to the High Court was then a reason to delay the hearing of this proceeding, and contingent actions taken on behalf of the Minister a number of the issues which have required attention in this proceeding would not have required comment.

Background

3    The Applicant was born in Sudan and is aged 39. He spent some time in the Kakuma Refugee Camp in Kenya before travelling to Australia with his family in 1999, having been granted a Class BA Subclass 202 Global Special Humanitarian visa (visa) on 13 May 1999. He has resided in Australia since that time.

4    The Applicant suffered some periods of homelessness in 2014. In 2014 and 2015 he spent some months in prison although the reasons and precise dates are not clear from the materials provided to the Court.

5    In November 2015, the Applicant was arrested and admitted to prison as a result of offences including: Commit Theft Using Force – Aggravated; Fail To Comply with Bail Agreement; Hinder Police; Unlawfully on Premises; and Aggravated Assault W/O Weapon Against Police Officer.

6    On 10 May 2016 the Applicant was convicted of Commit Theft Using Force – Aggravated and sentenced to two years and nine months imprisonment.

7    On 30 April 2018, a Sentence Authority report of the Department of Correctional Services of the Government of South Australia was provided to the First Respondent (the Minister) in response to a request for information. That report notified the Minster of the Applicant’s conviction and imprisonment (SCB pp 6-7).

8    By a letter dated 22 May 2018, the Applicant was either notified or purportedly notified that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) (the cancellation decision). The Applicant was invited to make representations as to whether that decision should itself be revoked. The Applicant was in prison at that time. He was handed the notification and invitation on 23 May 2018. The Applicant refused to sign an acknowledgment of receipt (SCB p 92).

9    On 27 March 2019, the Applicant was released from prison. He has resided at the Melbourne Immigration Transit Accommodation since that time.

10    On 6 April 2019, the Applicant signed or purported to sign representations to the Minister for the revocation of the mandatory cancellation of his visa (the Court notes that the authority for the Department to seek and disclose information to assist the Minister in assessing the revocation request is dated 29 April 2019). Those representations were conveyed to the Minister. However the Minister appears not to have received the Applicant’s representations until 3 May 2019 as is date stamped on the document on the court file (SCB pp 95-102).

11    On 29 April 2019, the Minister received a handwritten letter from the Applicant further detailing his circumstances. In that letter he requested the Minister to re-issue his visa. He said he needed to apply for a protection visa (SCB p 89).

12    On 30 April 2019 the Applicant applied to the Tribunal in the terms set out at [25] below (SCB p 93).

13    On 8 May 2019, the Applicant received a “notice of invalid revocation request” from the Department. The notice explained that it had been determined that his representations of 3 May 2019 “…were not made within the prescribed time frame. Therefore, the Minister [could not] consider revoking the decision to cancel [his] visa” (SCB p 105).

14    On 15 May 2019, a legal representative for the Applicant wrote to the Department to submit that the Applicant had not received effective notice of the mandatory cancellation of his visa, and as such the prescribed 28 day period had not yet commenced (SCB p 106). That submission was advanced on the basis that the Departmental Officer who had made the notification did not have the power to do so. That application, at least in those terms, has not been further pressed.

15    On 31 May 2019 the Tribunal decided that it lacked jurisdiction to review the underlying cancellation decision (First Tribunal Decision) (SCB p 114).

16    On 13 June 2019, the Applicant, assisted by a legal representative, applied for a protection visa (SCB p 116). At the time of the hearing in this proceeding, that application had yet to be determined.

17    On 7 January 2020, the Applicant lodged a second application with the Tribunal (SCB p 155). His second application was, or purported to be an application for review of a decision in relation to his application for a protection visa. By a decision dated 17 January 2020, the Tribunal dismissed that application (Second Tribunal Decision) for want of jurisdiction after having ascertained during a hearing on 17 January 2020 that the Applicant as at that time was yet to have been advised of a decision by the Minister or a delegate of the Minister. The factual correctness of that advice is unchallenged.

18    On 31 March 2021, the Applicant filed an Application for Extension of Time with the Federal Court of Australia. He attached both the First Tribunal Decision and the Second Tribunal Decision to his application.

19    On 14 September 2021, the Court made directions for the hearing. The Court noted in its orders that as a result of discussions had during the case management hearing that day, the Applicant was seeking to review only the Second Tribunal Decision. However, the Court later identified that the Applicant’s application might properly to be understood to relate to the First Tribunal Decision. Accordingly the Court wrote to the parties requesting a Supplementary Court Book to be filed with materials relating to the First Tribunal Decision.

20    Subsequently on 12 October 2021, the Minister’s solicitor, Mr Chan, notified the Court that the decisions in EPL20 and Sillars “may heavily affect the progression of this matter” and that he was seeking instructions as to a special leave application to the High Court. Mr Chan advised that depending on how things develop “a final hearing in this matter may be unnecessary”.

21    At a 17 December 2021 case management hearing, the Applicant being in immigration custody, the Court concluded that further delaying the hearing would be inappropriate and set down the Applicant’s proceeding for hearing on 22 December 2021. The hearing proceeded on that date. As is explained later in these reasons, after adjourning with leave to file certain further written submissions the Court re-opened the hearing to allow the parties to make further submissions on a point earlier not squarely addressed.

22    It is not in dispute that the Minister has sought special leave to appeal in EPL20 and Sillars.

23    Notwithstanding the Minister subsequently has re-notified the Applicant of his visa cancellation. On 21 December 2021 the Minister re-invited the Applicant to make representations as to why his visa revocation should be reconsidered. The Applicant’s re-notification however included the following advice:

Purpose of this notice

You were granted a Class BA Subclass 202 Global Special Humanitarian visa on 13 May 1999 (your visa). The purpose of this notice is to advise you that on 22 May 2018 your visa was cancelled under s501(3A) of the Migration Act 1958 (the Act) and to invite you to make representations about revoking that cancellation decision (‘the original decision’) .

You were previously invited, by a notice dated 22 May 2018, to make representations to the Minister about revoking the original decision. That previous invitation did not comply with the requirements of the Act identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174. You are being reissued with this invitation to comply with the requirements identified in those Federal Court decisions. However, please be aware that the Minister has sought special leave to appeal those decisions to the High Court of Australia. If the Minister is granted leave and is ultimately successful in those appeals, this re-issued invitation will be invalid and will be treated as not having been given. In that case, notwithstanding any representations you may have made in response to this re-issued invitation, the Minister will take the position that any revocation/non-revocation decision subsequently made is of no legal effect and that accordingly your visa remains cancelled.

(emphasis added)

The Tribunal Decisions

24    Because the Applicant is unrepresented and is without any legal sophistication as could assist the Court it was initially unclear which of the relevant decisions of the Tribunal he was seeking to impugn: or both. For that reason, although in the end I have been satisfied that it is only the First Tribunal Decision for which leave to appeal is pressed it is convenient first to give some background to each of the potentially relevant decisions.

The First Decision

25    On 30 April 2019, the Tribunal received a handwritten letter from the Applicant. The first paragraph of that letter reads as follows:

I was like to appeal for my visa class BA subclass 202 special Humanitarian visa because my visa was cancelled under s 501(3A) Act 1958. I had received the Notice when I was release from prison on the 27-3-2019. I had also received some papers when I was in a G1 Division at Yatala labour prison, But I was under lots of stress and restriction of Law at Yatala.

26    As at that point of time the Applicant was yet to be notified of a decision by the Minister with respect to the representations he had made (or purported to have made) dated 6 April 2019 in which he had sought the revocation of the mandatory cancelation of his visa under s 501(3A) of the Migration Act as is permitted by s 501CA(4) of the Migration Act (SCB pp 94-102).

27    However, on 8 May 2019 the Applicant was advised as follows:

On 22 May 2018 your Class BA Subclass 202 Global Special Humanitarian visa was cancelled under s501(3A) of the Migration Act 1958. By letter dated 22 May 2018 you were invited to make representations to the Minister about revoking the decision to cancel your visa. The letter also stated that your representations about revocation needed to be lodged within 28 days after the day you were taken to have received the invitation.

The Department has determined that your representations were not made within the prescribed time frame. Therefore, the Minister cannot consider revoking the decision to cancel your visa.

28    On 20 May 2019 the Tribunal notified the Applicant that his application had been listed on 31 May 2019 for “Interlocutory hearing by telephone – Jurisdiction question”.

29    At the conclusion of that hearing (in respect of which no transcript or other record appears to be available), the Tribunal cryptically recorded its decision as follows:

The Tribunal finds that it is not satisfied that it has jurisdiction conferred under an enactment as required by section 25 of the Administrative Appeals Tribunal Act 1975 to hear the application for review lodged with the Tribunal on 30 April 2019 from [CHVS].

30    No reasons for that finding were given.

The Second Decision

31    On 7 January 2020, the Applicant lodged a further application with the Tribunal. Although it might seem from the Applicant’s application that he may have been seeking further review of the First Tribunal Decision, the Tribunal’s brief reasons record that the application “purport[ed] to be for the review of a decision in relation to a protection visa”.

32    Having regard to the fact that during the hearing on 17 January 2020, the Tribunal ascertained that a decision had not yet been made in relation to that protection visa application the Tribunal decided that it had no jurisdiction to hear the Applicant’s application (SCB p 163).

33    The Tribunal’s 17 January 2020 decision was supported by reasons as follows:

1.     On 7 January 2018 the Applicant lodged an application with the Tribunal purporting to be for the review of a decision in relation to a protection visa.

2.     Attached to the application to the Tribunal was a statement from the Applicant in which certain protection claims are made, and providing other information in support of this visa application.

3.     The Tribunal ascertained during the hearing on 17 January 2020 that the Applicant made the application for the protection visa on 14 June 2019 but had not yet been advised of a decision by the Minister or a delegate of the Minister.

4.     The Respondent confirmed that a decision had not yet been made in relation to this application.

5.     The Tribunal notes that the Respondent undertook to ensure that the statement from the Applicant referred to in 2 above will be forwarded to the officers in the Department of Home Affairs considering Applicant’s protection visa application.

6.     As there is not a reviewable decision under an enactment as required by s 25 of the Administrative Appeals Tribunal Act 1975 (the Act), the Tribunal

(a) DISMISSES the application for review for want of jurisdiction pursuant to s 42A(4) of the Act; and

(b) DIRECTS, pursuant to s 35(3) of the Act, that:

i. the name of the Applicant is suppressed and be shown as CHVS; and

ii. the publication or other disclosure of any information tending to reveal the identity of the Applicant is prohibited.

The Applicant’s submissions

34    The Applicant was unrepresented. For the entirety of this proceeding he has filed no written submissions nor has he made any meaningful oral submissions relevant to his case. I make no criticism of the Applicant. As a self-represented litigant he understandably was limited as to what he might advance by way of legal argument.

The Minister’s Initial submissions

35    The Minister filed written submissions and made oral submissions at the hearing on 22 December 2021. In relation to the First Tribunal Decision, the Minister submitted inter-alia:

4.     The Minister’s primary submission is that the Court could not be satisfied that there was jurisdictional error on the part of the Tribunal in making the First Tribunal Decision that would enliven a power in this Court to quash it. This is because:

(a)     The review sought before the Tribunal was of the mandatory cancellation decision made under s 501(3A) of the Migration Act 1958 (Cth) (Act).

(b)     The Tribunal does not have jurisdiction to review a decision of the delegate under s 501(3A) to cancel a visa, by reason of s 500(4A)(c).

5.     That is sufficient for this Court to dismiss the application for judicial review of the First Tribunal Decision. But for completeness, it is noted that:

(a)     There was no decision by the Minister or a delegate not to revoke the cancellation decision under s 501CA(4). This is because the Department of Home Affairs formed the view that the applicant had not made representations within the time required by s 501CA(4)(a).

(b)     The decision of the Tribunal, therefore, did not relate to any “non-revocation” decision under s 501CA(4). No such decision was ever made at all.

(c)     It follows that a decision of this Court quashing the decision of the Tribunal would leave the applicant with no practically useful outcome. The Tribunal would be required to reconsider the application made by the applicant. That application was with respect to the cancellation decision under s 501(3A) of the Act. The Tribunal would still have no jurisdiction to review that decision. The Tribunal otherwise has nothing to review on the merits: no decision has ever been made not to revoke the cancellation decision.

…

36    The Minister did not provide written submissions in relation to the Second Tribunal Decision, proceeding on the basis that the Applicant’s application properly understood was pressed in respect of the First Tribunal Decision only.

Further submissions on First Tribunal Decision invited on 13 January 2022

37    On 13 January 2022 the Court advised the parties that it had re-listed the proceeding in order to hear any submissions the parties might wish to advance regarding two propositions that had not been squarely the subject of submissions. The first being whether the decision of the Tribunal of 31 May 2019 that it lacked jurisdiction might be correct, not for the reasons the Minister had advanced in initial submissions, but because, although the Applicant had purported to make a request for revocation of a mandatory visa cancellation under s 501(3A) of the Migration Act (SCB pp 95-102) he had never been validly notified pursuant to s 501CA of the Migration Act. The second was whether, should such a view be taken by the Court, it would be appropriate to make a declaration analogous to that made by Judge Kelly in Gates v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 139 (Gates).

38    Counsel for the Minister, Ms Wootton, filed written submissions in response to that request and the Court heard further from the parties on 19 January 2022.

39    In those written submissions the Minister advances three key propositions:

(1)    That the Tribunal did not lack jurisdiction by reason of any invalidity of the notification given under s 501CA(3)(b) of the Migration Act and that that position is supported by the reasoning in EPL20, Sillars, and Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 (Stewart).

(2)    That it would not be appropriate for the Court to make a declaration analogous to that made in Gates because the Minister has already re-invited the Applicant to make representations pursuant to s 501CA(3)(b) of the Migration Act; and

(3)    That in any event the Court does not have jurisdiction to review the validity of either of the notifications given by the Minister in oral submissions; citing in support the reasoning of Middleton J in PYDZ v Minister for Immigration, Migrant Services and Multicultural Affairs [2021] FCA 1050 (PYDZ) at [52], [69].

40    In support of each proposition, the Minister submits that:

(1)    The fact that the application was only in respect of a s 501(3A) cancellation decision is made clear by the fact that the Applicant applied to the Tribunal for review prior to even making representations for the revocation of his visa. Moreover as a matter of fact it could not have been the case that the Tribunal’s decision that it lacked jurisdiction had been made on the basis of the invalidity of the 22 May 2018 notification because EPL20 and Sillars had not been decided at that point of time;

(2)    On the authority of EPL20, Sillars and Stewart the invalidity of a notification given under s 501CA does not “automatically” (emphasis in the original) deprive the Tribunal of jurisdiction to review a non-revocation decision. It is unnecessary to detail that argument now. I will address later in my reasons the reasoning the Minister advances in that regard and also explain why I reject that the cases the Minister relies on stand as a barrier to the Court concluding that the reason the Tribunal lacked jurisdiction was not for the reasons the Minister advances in submissions, but because, the Applicant had never been validly notified of the revocation of his visa pursuant to s 501CA of the Migration Act; and

(3)    Even if the above is wrong, this Court has no jurisdiction to make a declaration of the kind made in Gates because the validity of that notification is not a matter within its jurisdiction by reason of s 476A(1) of the Migration Act.

Consideration

41    The principles governing whether leave should be granted for an extension of time to appeal are well settled. They involve consideration first of the length of delay, the adequacy of the reasons for it and whether the opposing party might suffer any prejudice by reason of the delay; and second the prospective merits of any appeal as might potentially subsequently be brought.

42    In so far as the length of time for the delay and the adequacy of the reasons for it which have been advanced in explanation by the Applicant the Minister has not pressed any contention that the Applicant's application should be rejected for that reason. The Court is entitled to accept, in those circumstances, that the Applicant's delay has not of itself occasioned any prejudice to the Minister. It is also prepared to accept that faced with a decision by the Tribunal in respect of which no reasons have been given some dispensation can be extended to an unrepresented litigant who has failed to seek review in a timeous way. On balance, notwithstanding that no sworn evidence has been adduced to explain the Applicant's delay, and in the context of this proceeding having regard to the position the Applicant found himself in and his understandable confusion, while his delay having not been adequately explained counts against him, the Court would not refuse an extension of time for reason of the Applicant's delay standing alone.

43    However, having regard to the issues I now turn to address with respect to the second of the principal considerations, I would dismiss the Applicant's application for an extension of time to appeal the Tribunal's decision dated 31 May 2019 because an appeal from the Tribunal's decision that it was without jurisdiction with respect to the application before it has no reasonable (or any) prospects of success. There is thus no occasion for the Court to address the Minister's contingent submissions premised on the want of utility of a finding that the Tribunal had erred.

The First Tribunal Decision

44    The Minister’s submission in relation to the First Tribunal Decision is that what was before the Tribunal was merely an application seeking review of the original “automatic” decision to revoke the Applicant’s visa, which was not a matter within the jurisdiction of the Tribunal. The Applicant’s visa, the Minister submits, had been revoked pursuant to s 501(3A) of the Migration Act. Section 500 of the Migration Act then provides for the circumstances where applications may be made to the Tribunal for review of certain decisions made under the Migration Act. It is uncontentious that a visa revocation decision per se is non-reviewable. Section 500(4A) expressly identifies certain decisions which are not reviewable in the Tribunal. Those include “(c) a decision of a delegate of the Minister under subsection 501(3A) to cancel a visa”. Thus, as the Minister submits, the Tribunal lacked statutory power to hear the Applicant’s application for review. That submission must be correct if the Applicant’s application to the Tribunal properly must be so understood. However that is not the end of the matter.

45    The Minister’s submission that the Applicant’s application to the Tribunal is to be read as limited to challenging the Minister’s cancellation has some, but only superficial, attractiveness. The Minister correctly observes that application in terms refers an “appeal for my visa class BA subclass 202 special Humanitarian visa because my visa was cancelled under s 501(3A) Act 1958”. However, it also refers to his having received certain papers and having been confused as might explain his delay in making representations.

46    The language of an application to the Tribunal as expressed by an unrepresented litigant with self-evidently limited English language skills is not to be parsed as if it were a strict pleading. I accept that the Applicant’s application does not in terms refer to the fact that he had responded to the Minister’s invitation (or purported invitation) to make submissions as to whether there was another reason why the Minister’s cancellation decision should itself be revoked. However there is no reason for the Applicant to have referred to his having received certain papers and having been confused in relation to his rights unless that was offered in explanation of what had been his belated representations.

47    In the present instance the Applicant’s application to the Tribunal is to be understood as having regard to the relevant fact that prior to his making that application the Applicant had made (or had purported to make) representations to the Minister for the revocation of his visa cancellation. He had made those representations in a document dated 6 April 2019 although the authority he apparently later signed for the Department to seek and disclose information was dated 29 April 2019 (see SCB p 100) and as noted at [10] above his representations appear to have been received by the Minister’s department only later on 3 May 2019.

48    In those circumstances there is no sound foundation for the Court to accept the Minister’s contention that the Applicant had applied to the Tribunal for review prior to even making representations for the revocation of the cancellation decision such as would plainly illustrate that his application was confined to seeking review of that prior decision.

49    Whatever accounts for the delay before the Minister’s receipt of the Applicant’s representations ultimately is neither here nor there. Whatever may be the reason the Applicant’s representations (as may be found in the SCB pp 95-105) had been received on behalf of the Minister by 3 May 2019. The fact that the Applicant had made those representations and the terms of those representations was thus either actually or constructively before the Tribunal on 31 May 2019 when the Tribunal came to make its ‘no jurisdiction’ decision. It is implausible that in that circumstance the Tribunal could have understood that the application before it (accepting it to have been poorly expressed) was only in respect of the anterior automatic revocation decision.

50    Moreover the Tribunal also had before it (or it was constructively before it) the “notice of invalid revocation request” which had been sent to the Applicant on 8 May 2019 in which he had been informed that for the reason his representations had not made within the prescribed time frame “…the Minister cannot consider revoking the decision to cancel your visa” (SCB p 105).

51    Had the Minister’s purported notice dated 22 May 2018 been effective in law to have notified the Applicant both that his visa had been cancelled and that he was being invited to make representations as to whether that decision should be revoked, the Tribunal would plainly have been correct to conclude it lacked jurisdiction (perhaps more accurately without statutory authority to review) by reason of the Applicant having been being out of time when he had made his representations to the Minister. That was, of course, what the Minister had advised the Applicant on 8 May 2019 to be the position (see at [13] above).

52    However, because it is uncontentious that the Minister’s notice and invitation of 22 May 2018 failed to comply with the requirements of the Migration Act as has been identified in EPL20 and Sillars such an analysis is unavailable to support the Tribunal’s ‘no jurisdiction’ decision. It is not in dispute that the terms of the purported notice dated 22 May 2018 (SCB pp 1-86) which was handed to the Applicant on 23 May 2018 (albeit he had declined to acknowledge its receipt) is indistinguishable in material regards from that which was held to be legally deficient in those cases.

53    Once that is accepted, the legal position before the Tribunal; albeit perhaps then recognised neither by the Minister nor the member then constituting the Tribunal, was that the Applicant had yet to be provided with a valid notice of his visa revocation by the Minister. On the authority of EPL20 and Sillars, the Applicant was also yet to be validly notified of his right to make representations pursuant to s 501CA of the Migration Act.

54    What was decided in EPL20 and Sillars is binding on me as a single judge of this Court as the expression of the true position of the law not only as it is now but as it then existed, whatever might have been the contrary understanding of the Minister and the Tribunal.

55    Thus notwithstanding the terms of the letter the Department sent on 8 May 2019 to the effect that his representations would not be considered because they were out of time, properly understood as a matter of law they were not. To the contrary no occasion for their making had arisen because the Minister to that point of time had not only failed to discharge the duty required by s 501CA(3) of the Migration Act in that the notice he had purportedly given in relation to the decision made on 13 May 2018 to cancel the Applicant’s visa under s 501(3A) of the Migration Act had not complied with the requirements of reg 2.52(2)(b) of the Migration Regulations 1994 (Cth) (Migration Regulations) but also he had advised the Applicant in writing on 8 May 2019, in (erroneous) reliance on its validity, that they would never be considered.

56    I accept that the Tribunal’s authority derives from statute and is not at large. Counsel for the Minister, Ms Wootton, undoubtedly is correct to submit that the only relevant review jurisdiction the Tribunal possesses is that conferred by s 500(1)(ba) of the Migration Act. That provision confers on the Tribunal authority to review a decision of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

57    I do not dismiss that the decision made on behalf of the Minister as was communicated to the Applicant on 8 May 2019 arguably might engage that jurisdiction. That is because he had been bluntly advised that by reason of his having not taken the opportunity to make representations within the time allowed for that purpose “…the Minister cannot consider revoking the decision to cancel your visa”.

58    In a practical sense that was a decision in the Applicant’s instance made on the Minister’s part “not to revoke a decision to cancel [his] visa”. The Applicant was advised that because his representations had been made out of time, the Minister was not going to consider revoking his visa cancellation. The practical effect of that decision was the non-revocation of the Minister’s earlier decision to cancel his visa. If, on a proper construction such a decision constitutes a reviewable decision for the purposes of s 501CA(4) of the Migration Act the Tribunal had statutory jurisdiction to review it.

59    That would be so whatever the validity or invalidity of the Minister’s earlier notification. I pause to emphasise that point because it identifies the flaw I apprehend to be inherent in the submissions later advanced by Ms Wootton in support of the Minister’s second proposition.

60    As Dennis Pearce notes in his invaluable text Administrative Appeals Tribunal (5th ed, LexisNexis, 2020) at 3.20, “[f]rom its establishment the [Administrative Appeals Tribunal] has been called upon to review decisions that, if the challenge had been brought before a court, could have been resulted in the court declaring the decision to be invalid.” The Tribunal’s authority to do so was upheld on appeal by a Full Court of this Court in Collector of Customs v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 (Lawlor). It has never since been doubted. The Lawlor principle extends to the Tribunal’s work in determining matters arising in which it has been conferred with power under the Migration Act: Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; 100 FCR 495.

61    I reject Ms Wootton’s submissions advanced in oral argument that the decision communicated to the Applicant by the letter of 8 May 2019 could not constitute a decision for the purposes of s 501CA(4) of the Migration Act because the Court would not be entitled to be satisfied that the officer who had made it held a lawful delegation for that purpose. There is no evidence before this Court regarding (a) who the decision maker was or (b) their submitted for want of authority. In the absence of evidence to the contrary (as would have been in the power of the Minister to advance), the presumption of regularity entitles the Court to assume the decision-maker who made that decision had whatever delegation was required for the decision he or she made.

62    Nonetheless, although no authority has been referred to the Court as would put the issue beyond doubt, I proceed on the basis that Ms Wootton is correct to submit, having regard to the complex structured processes of the Migration Act, that while that decision had such a practical effect, the decision which was communicated to the Applicant by letter dated 8 May 2019 was not a “decision” within the contemplation of s 500(1)(ba) of the Migration Act. I have come to that conclusion because I am satisfied that the true position is that rather than it having been such a decision, it was a decision (albeit one made on the basis of an incorrect understanding of the law) to refuse even to consider the Applicant’s representations and thus a refusal to make any such decision.

63    However, for the reasons I have stated I am also satisfied, notwithstanding Ms Wootton’s submissions, that on a true understanding of the law the Tribunal’s conclusion that it lacked jurisdiction is to be upheld because the only available basis for its making was that rather than the Applicant having been validly notified of his visa cancellation and of his right to make submissions for the revocation of its cancellation pursuant to s 501CA of the Migration Act, the notice he had been given on 23 May 2018 had been invalid.

64    Ms Wootton submits “as a matter of fact” that because EPL20 and Sillars had not been decided at that point of time “it is plain” that the Tribunal’s decision could not have been made on that basis.

65    That of course is not the reasoning process required in this proceeding. This proceeding involves the Court determining whether an extension of time to appeal the Tribunal’s decision dated 31 May 2019 should be granted. In that task it is to apply the law as has been expressed by the Full Court. In this proceeding the fact that the decisions in EPL20 and Sillars were yet to be made as at the time of the Tribunal’s decision is inconsequential. Those decisions are not expressed (assuming Australian law would allow for such a contingency) as operating only prospectively. In fundamental legal theory the Full Court did not alter the law. Rather, as an exercise of binding statutory construction, which is an exclusively judicial function, it had authoritatively stated the effect of the statute law then before it. That the Minister had hitherto proceeded on a different assumption is neither here nor there. This Court is bound to find he had been mistaken.

66    It is also pertinent to note that in Stewart a differently constituted Full Court had also earlier held that the words “made representations” as found in the relevant statutory context meant “dispatched”. In finding that the Minister’s notification letter did not meet requirements of s 501CA(3) of the Migration Act the Full Court in both EPL20 and Sillars rejected the Minister’s submission that the reasoning in Stewart was  “plainly wrong”. Stewart therefore also is binding on me as a single judge of this Court. The Minister did not seek special leave to appeal in that case.

67    Thus even in the most colloquial of senses it cannot be suggested that the decisions in EPL20 and Sillars “changed” the law.

68    In any event the Tribunal’s decision cannot be immunised from judicial review on the premise that the member constituting the Tribunal had, even understandably, wrongly understood the law it applied to the facts before it.

69    Assume, contrary to the fact, that the Tribunal had assayed the task of giving reasons for its ‘no jurisdiction’ decision. Applying the law correctly, for the reasons I have given at [52] it could not have concluded that his application was invalid because it had been made out of time.

70    Further the Tribunal could not have concluded that the Applicant had applied prematurely on the basis that the Minister was yet to make a decision with respect to his representations as were before it: the Tribunal had before it, actually or constructively, the Minister’s express decision that he would not consider any submissions made after the expiry of the period in which he had (wrongly) understood they were required to be made.

71    The Tribunal, properly appraised of the law, would have had to have reasoned that, having regard to his erroneous application of the law, the Minister had yet to perform his duty to notify the Applicant of his visa cancellation and his right to make representations. On that premise the Tribunal would have reasoned that, because the Minister was plainly in jurisdictional error in asserting the validity of the notice which he had caused to have been given to the Applicant on 23 May 2018, it had no power to entertain the application before it.

72    The Tribunal could not, had it correctly apprehended the law, ignored the elephant in the room that the Minister had, contrary to his duty, yet to provide a valid notice as required by the Migration Act. Nor, notwithstanding the elegant advocacy of Ms Wootton, can this Court.

73    That the Applicant might have reasoned (and apparently did anticipate) that the Tribunal could somehow substitute itself for the Minister and make a decision in his favour on the basis of the representation he had advanced in response to his purported notification was equally fundamentally mistaken. However his error was inconsequential. He had never been notified according to law so his representations were without any statutory foundation and there was nothing for the Tribunal to review.

74    I do not doubt that had it applied the law as determined by Stewart, EPL20 and Sillars the Tribunal would have advised the Applicant, should the Minister choose not to re-issue him with a valid notice and invitation, that it would never have jurisdiction. For that reason his remedy was not in the Tribunal. He would have to seek judicial review.

Submissions as to EPL20, Sillars and Stewart and the Tribunal’s jurisdiction

75    I should add something further in explanation of my reasoning that nothing in EPL20, Sillars, or Stewart requires the conclusion that the Tribunal erred in finding that it lacked jurisdiction on the basis of the above.

76    For that purpose will I set out Ms Wootton’s outline of submissions of 18 January 2022 as applies to EPL20 but my observations apply equally to all of the cases the Minister cites:

10.     In EPL20, the applicant had made representations which were “received” by the Minister one day outside the 28-days specified in the notification. Notwithstanding, the delegate again went on to consider the representations but decided not to revoke the visa cancellation. It was only before the Tribunal that the Minister again contended that the Tribunal (and the Minister) lacked jurisdiction, because the representations had not been made within time. The Tribunal agreed, and found it did not have jurisdiction to review the delegate’s decision. The Full Court found that the notification, in misstating the time for the making of representations (by reference to when they were received, not dispatched), did not comply with s 501CA(3). The order made, however, was simply to quash the decision of the Tribunal to the effect that it did not have jurisdiction to review the decision under s 501CA(4). That is, the Full Court accepted that the Tribunal did have jurisdiction to review the non-revocation decision, notwithstanding the invalidity of the notification.

(citations omitted)

77    Putting aside the perhaps irony of their seeming inconsistency with the Minister’s primary submissions, I reject those further submissions. In proceeding as it did the Full Court in EPL20 did no more than to apply the now uncontroversial Lawlor principle’ viz that the Tribunal has authority to review decisions that, if a challenge had been brought before a court, could have resulted in the court declaring the decision to be invalid. I have noted at [60] above that the Lawlor principle equally applies in the Tribunal’s migration division.

78    For the same reason I reject the ‘in terrorum’ submission Ms Wootton advances at footnote 5 of the Minister’s outline. In that footnote it is submitted that that to conclude that the Tribunal lacked jurisdiction because the Minster had never validly notified the Applicant would give rise to great unfairness. It would mean that every Tribunal decision subsequent to EPL20 with respect to an affected notification whether favourable or unfavourable to an applicant would be invalid. That submission dramatically over-eggs the omelette. Having regard to the Lawlor principle it cannot be correct.

79    However, it is self-evident there could have been no occasion for the Lawlor principle to be invoked in the proceeding then before the Tribunal, because the Minister, rather than having made a decision in respect of the Applicant’s representations which might be reviewable in the Tribunal on the Lawlor principle notwithstanding its underlying invalidity, instead had asserted an entitlement (for reasons which also involved jurisdictional error) to refuse to make any such a decision at all.

The Second Tribunal Decision

80    As I have noted earlier the Minister did not make submissions in relation to the Second Tribunal Decision on the understanding it was not pressed by the Applicant. Although the Applicant provided nothing by way of a formal concession that that is the case I accept that is the case and I proceed on that basis.

81    However lest I be mistaken in that regard I should record my finding that there was no jurisdictional error in the second impugned decision made by the Tribunal. The Applicant sought review in the Tribunal prior to the Minister having made a potentially reviewable decision with respect to the Applicant’s protection application. The Tribunal was correct to conclude that it had no authority to review a decision still under consideration and yet to be made. The Tribunal published its reasons. They are as appear at [33] above. I am satisfied, assuming, contrary to my conclusion that the application includes an attack on the Second Tribunal Decision that there was no error in the Tribunal’s analysis or its conclusion.

Conclusions

82    For the reasons stated above the Court dismisses the Applicant’s application for an extension of time to appeal the Tribunal’s decision dated 31 May 2019.

83    However, as is relevant both to costs and consequences it is not insignificant that the Court has determined that the Tribunal lacked jurisdiction not for the reasons advanced by the Minister but instead because, although the Applicant may have purported to make a request for revocation of a mandatory visa cancellation under s 501(3A) of the Migration Act (SCB pp 95-102), he had yet to be validly notified pursuant to s 501CA of the Migration Act.

84    The law as stated in EPL20 and Sillars requires the conclusion the Court has stated at [53] above.

85    That the Applicant was required to be re-notified has been accepted by the Minister: albeit only belatedly and, as I discuss below, purportedly conditionally.

86    As has been set out at [23] above, on 21 December 2021 (on the eve of the hearing of this proceeding) a delegate of the Minister wrote to the Applicant advising him that the Minister’s previous invitation had not complied with the requirements of the Migration Act as had been identified in EPL20 and Sillars. The Applicant was re-issued with a new invitation in terms intended to comply with the requirements which had been identified in those two decisions.

87    Subject to its asserted conditionality I do not doubt that the delegate was within his or her lawful rights to have re-issued that invitation. I apprehend no reason to cavil at the lawfulness of the Applicant having been re-notified of his visa cancellation and of his opportunity to make representations as to why that decision should be revoked.

88    That is because, while caution is appropriate lest an occasion for dispute as to whether the first act or decision truly was not authorised by law, an administrative decision maker who becomes firmly convinced on sound grounds that an act they have performed or decision they have made is a nullity by reason of jurisdictional error may, in lieu of compelling those who might be subject to its adverse consequences to seek a judicial remedy, instead properly perform the act or remake the decision in terms complying with the law: Minister for Immigration v Bhardwaj [2002] 209 CLR 597 (Bhardwaj).

89    The Minister submits that EPL20 and Sillars do not bear on the validity of the Minister’s re-notification. Moreover those decisions;

6.    …are irrelevant to the matters that are properly before this Court…the only way those decisions could be relevant is if the applicant sought mandamus requiring the Minister to reissue an invitation under s 501CA(3)(b). But in compliance with the decisions in EPL20 and Sillars, a delegate of the Minister has already issued a “new” invitation under s 501CA(3)(b). Mandamus would therefore not issue, because there is no unperformed public duty.

7.     Any question of the validity of that new invitation is not before the Court. Nor could it be, because this Court does not have jurisdiction to review the validity of an invitation to make representations under s 501CA(3)(b) (because of s 476A(1) of the Act).

90    However the findings of this Court as are stated at [53] and [71]-[72] leave no scope for any conditionality as would allow the Minister to treat any representations the Applicant might make in response to his re-notification as not having been validly made if the contingency his delegate advised (as highlighted in bold in the extract that is found at [23] above) subsequently arises.

91    What the Court has stated are judicial findings in a proceeding in this Court’s jurisdiction applying the law as has been stated by two Full Courts of the Federal Court of Australia (EPL20 and Sillars on the one hand and Stewart on the other) each which are binding on me as a single judge. They are findings that in purporting to give his first notification that the Minister’s delegate had not performed the duty required of him or her by s 501CA(3) of the Migration Act because the notice purportedly given had failed to comply with the requirements of reg 2.52(2)(b) of the Migration Regulations.

92    I reject that this Court is without power to make a declaration consistent with that finding. Ms Wootton submits that it lacks authority because, the Minister having re-notified the Applicant, there remains no unperformed duty to fulfil. There is no small irony in that proposition. It assumes the Court is entitled to and must proceed on the basis that the Applicant’s re-notification is valid while at the same time in other submissions denying that the Court is entitled to form a view on that subject matter. However that in the end is of no consequence. The declaration the Court has foreshadowed does not directly speak to the validity of any subsequent conduct but rather to the antecedent basis for the correctness of the Tribunal’s findings that it lacked jurisdiction.

93    In any matter within the civil jurisdiction of this Court, s 21 of the Federal Court Act 1976 (Cth) (Federal Court Act) provides that the Court has power to make a binding declaration of right whether or not any consequential relief is or could be claimed. There is no doubt, and Ms Wootton does not submit otherwise, that this Court has jurisdiction to determine the Applicant’s application for an extension of time to appeal the Tribunal’s decision dated 31 May 2019.

94    Ms Wootton also submits there is no relevant ‘controversy’ to quell. I reject that submission. I reject that I am without authority to make a declaration in the terms foreshadowed because there is no relevant controversy remaining to be quelled: the Applicant has sought an extension of time to put forward contentions as would permit his proceeding to continue in the Tribunal. That is the controversy to be quelled. How it should be quelled must turn on the correct application of the law to the facts before the Court. It is to be quelled by reason of the Court having concluded that the Tribunal erred albeit not for the reasons advanced by the Minister but instead because, in the actual circumstances applying, the Tribunal any lacked authority to determine the application then before it having regard to the underlying invalidity of the Minister’s original notification.

95    The Applicant is in detention. He has expressed anxiety that he might remain in detention after making representations that later may yet be disregarded. Those fears are entirely understandable. Having regard to the Court’s findings as support the Tribunal’s ‘no jurisdiction’ decision he is entitled, as an aspect of quelling the controversy he has brought before the Court, to be assured as to the invalidity of the Minister’s initial notification.

96    It is implausible that that this Court’s findings at [53] and [71]-[72] could be suggested not to form the ratio of this case, but in an abundance of caution I am satisfied I should also make a declaration in analogous terms to that made by Judge Kelly in Gates v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 139 as will ensure that no want of certainty prevails.

97    To make a declaration in those terms is not to purport to review the to review the validity of the Minister’s re-invitation to make representations under s 501CA(3)(b) as would be prohibited by s 476A(1) of the Migration Act. It is simply to make it unambiguously plain that, applying the law to the facts before it, the Court has concluded that the Tribunal was correct to have held it lacked jurisdiction by reason of the fact that the statutory duty the Minister had purported to perform on 23 May 2018 was then yet to be performed. It was not merely a duty conditionally unperformed, it was, in law, wholly unperformed.

98    Section 22 of the Federal Court Act supplies the necessary power for the Court to make such a declaration. It is as follows:

22 Determination of matter completely and finally

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

99    In my view it is appropriate to make such a declaration to quell the controversy in this proceeding and to avoid any multiplicity of proceedings by making clear that the Court has found that the Minister did not perform a duty required by s 501CA(3) of the Migration Act by purportedly giving the Applicant a notice dated 22 May 2018 in relation to a decision made on 13 May 2019 to cancel the Applicant’s visa under s 501(3A) of the Migration Act because it did not comply with the requirements of reg 2.52(2)(b) of the Migration Regulations.

100    Whatever might subsequently be the fate of the special leave applications (and any appeal contingent upon that) in EPL20 and Sillars which are yet to be determined by the High Court the same conclusion would be required to be reached by this Court having regard to Stewart in which a differently constituted Full Court had earlier held that the words “made representations” as found in the relevant statutory context meant “dispatched”.

101    To the extent such a declaration might bear upon any later controversy as might arise between the parties having regard to the threatened prospect that the Applicant’s representations might be disregarded in a circumstance potentially arising notwithstanding his re-notification by a delegate of the Minister in the terms of the letter that was sent to him on 21 December 2021 is not for this Court. However, as between the parties the declaration the Court intends to make will be binding on each of the parties (subject to review on appeal) in any such circumstance.

If I am wrong

102    A question that remains is whether assuming the conclusion I have reached that a declaration should be made on review is held to be in error the Court should make any observations as to the legal logic of what the Court identified as the apparent conditionality of the Minister’s re-issued invitation.

103    As has been noted above at [20] of these reasons, on 12 October 2021 the Court was notified by the then counsel for the Minister that the Full Court decisions of EPL20 and Sillars “may heavily affect the progression of this matter”. It was said that it was possible that “a final hearing may be unnecessary”.

104    On 7 December 2021 the Court requested an update from the Minister by email, and asked the parties whether a case management hearing would be of assistance. On 13 December 2021 counsel responded to that request as follows:

We confirm that the Minister has sought special leave to appeal in the matters of EPL20/Sillars. Given the correctness of EPL20/Sillars will have a significant impact on the progression of this matter, including determining whether a final hearing will be required, the Minister's position is that the matter should be adjourned pending the resolution of EPL20/Sillars. As such, the Minister's position is that the matter does not need to be listed for a case management hearing prior to Christmas.

For completeness, we are instructed to draw to the Court's attention that the applicant has since been re-notified of his visa cancellation and invited to make representations in accordance with EPL20/Sillars, such that the visa cancellation and revocation process can progress independently of these Court proceedings.

105    The Applicant notified the Court that he did not consent to the course proposed by the Minister. The Court arranged a case management hearing for 17 December 2021.

106    At the 17 December 2021 listing, then counsel for the Minister, Mr Chan, advised that a special leave application had been filed in the High Court on 26 October 2021 in relation to both EPL20 and Sillars but a hearing date had not yet been allocated. He explained that “there would be utility to these proceedings being not dismissed and continuing because should the High Court find in favour of the Minister, then that re-notification would be invalid and anything from that point onwards would, also, be invalid.”

107    The Court indicated at the 17 December 2021 case management hearing that it found the Minister’s position difficult to accept, putting to the Minister, “[b]ut why should the Minister not make an election now so that there is clarity?” The Court indicated that it considered that it could be inferred that by issuing a re-notification, the Minister had accepted that the first invitation to the Applicant was invalid. Put another way, a re-issue of the invitation would not have been made but for the original notification being invalid.

108    Ms Wootton accepts that what was advised to the Court by Mr Chan on instructions in the second paragraph of the Minister’s response of 13 December 2021 had been factually in error. As at that time the Applicant had neither been re-notified nor issued with any such re-invitation. That had occurred only later on 21 December 2021.

109    It is unfortunate that that mistake was not identified at the subsequent case management hearing on 17 December 2021

110    That case management hearing proceeded on the unsound premise that the Applicant had already been re-notified. Ms Wootton accepts (assuming the words I have highlighted in paragraph [23] above do not affect its lawfulness or can be severed from it) that a valid re-notification was given to the Applicant only on 21 December 2021 and on the eve of the hearing scheduled to proceed the next day.

111    At that hearing, Ms Wootton did not seek an adjournment. In written submissions counsel indicated that the Minister’s position was that:

…ultimately, the only issue before this court is the validity of two decisions of the Administrative Appeals Tribunal – probably one decision of the Administrative Appeals Tribunal – and there’s no jurisdictional error with respect to that decision.

112    In the course of oral submissions the Court expressed scepticism about the capacity of the Minister to both approbate and reprobate: that is to assert the right to treat his original notification on the one hand as a nullity but on the other to only offer the Applicant a conditional opportunity to have his representations considered on the basis that the notification he had conceded to be a nullity would revive in full legal effect should special leave to appeal be granted in EPL20 and Sillars and those appeals succeed.

113    At the conclusion of the hearing, the Court ordered as follows:

1.    The Minister file and serve any further submissions they might wish to rely on in relation to the submission at [35] of the Minister’s written submissions filed 22 December 2021 that the course the Minister sets out in Exhibit MC-1 of the affidavit of Maurizio Cosentino filed 22 December 2021 is the only lawful course the Minister can take including having regard to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 by 4:00pm on 10 January 2022.

2.    The Applicant be referred for pro bono assistance pursuant to r 4.12 of the Federal Court Rules 2011 (Cth).

114    In response to that invitation the Minister advanced written submissions as follows:

6.     First, the invitation given to the applicant on 21 December 2021 (Second Invitation) is not “conditional”. The Minister accepts that if the applicant makes representations “in accordance with” the Second Invitation (s 501CA(4)(a)) the Minister would be obliged to consider those representations as a whole4 and to consider whether to revoke the original decision under s 501CA(4) of the Act.

7.     Second, the terms of the Second Invitation, which refers to EPL20 and Sillars, explain what the Minister’s position will be in a future and hypothetical situation (that is, if the Minister is successful in the High Court in an appeal against the decisions in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 (EPL20) and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 (Sillars)).

8.     Third, in that future and hypothetical situation, the course that the Minister has foreshadowed is the only one that complies with the law, including having regard to the decision in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (Bhardwaj). This is because:

(a)     There can be only one valid invitation given to a person under s 501CA(3)(b) of the Act: see BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91 (BDS20) at [115] (Banks-Smith and Jackson JJ).

(b)     If EPL20 and Sillars are subsequently overturned, the Minister will have purported to issue a further invitation when she had no power to do so, because the Act does not contemplate that more than one valid invitation can be issued.

(c)     Any representations made in compliance with the purported second (invalid) invitation could not engage the decision-making power in s 501CA(4), because there will have been no “representations made in accordance with the [only valid] invitation”, being an objective jurisdictional fact necessary to enliven the power in s 501CA(4): see Ali v Minister for Home Affairs (2020) 380 ALR 393 at [40].

(d)     Consistently with Bhardwaj, any later purported exercise of the power conferred by s 501CA(4) on the basis of representations made in response to the Second Invitation would lack statutory force in those circumstances. The Minister’s actions in issuing the Second Invitation could not alter the statutory constraints on that power.

9.     Fourth, the correctness of the third proposition is not in issue before this Court. It would only arise if the Minister is successful before the High Court and a purported decision has been made under s 501CA(4). If that issue arises, it can and should be determined on the basis of a concrete factual foundation, by a Court seized of jurisdiction to decide the matter. In the present circumstances, the application for judicial review before this Court should simply be dismissed.

10.     These four propositions are addressed in turn.

B.     FIRST PROPOSITION: INVITATION NOT CONDITIONAL

11.     The first submission the Minister makes is that the Second Invitation given to the applicant is not “conditional” in any relevant sense. The Minister embraces the proposition put by the Court during the Final Hearing that a “notification with conditions is not something authorised under the Act”. For the avoidance of any doubt, the Minister accepts that at the time of the Second Invitation and to date:

(a)     The first invitation given to the applicant on 23 May 2018 (First Invitation) did not comply with the requirements of the Act as articulated in the decisions of the Full Court in EPL20 and Sillars.

(b)     Following those decisions being handed down, the Minister was under a duty under s 501CA(3)(b) to invite the applicant to make representations, in accordance with the law as stated in EPL20 and Sillars. This is because, consistently with Bhardwaj, the Minister (acting in accordance with the Full Courts’ decisions) has treated the First Invitation as invalid, with the consequence that no invitation was given at all. That means that the duty to issue an invitation under s 501CA(3)(b) remained unperformed, and the Minister was required to perform it.

(c)     The Minister performed the duty under s 501CA(3)(b), by issuing the Second Invitation.

(d)     If the applicant makes representations “in accordance with” the Second Invitation (s501CA(4)(a)), the Minister would be obliged to consider whether to revoke the original decision under s 501CA(4) of the Act and (in doing so) consider those representations as a whole.

(e)     In the circumstances described in paragraph (d), further obligations may arise under the Act (namely, to release the applicant from immigration detention if the consequence of the decision is that he has a visa, or to remove the applicant from Australia in accordance with s 198 of the Act if he does not and is otherwise liable to removal).

12.     In those circumstances, the invitation is in no relevant sense “conditional” or issued “with conditions”.

C.     SECOND PROPOSITION: THE TERMS OF THE SECOND INVITATION

13.     The terms of the Second Invitation which have led the Court to the concern that it is “conditional” are set out here in full for ease of reference:

You were previously invited, by a notice dated 22 May 2018, to make representations to the Minister about revoking the original decision. That previous invitation did not comply with the requirements of the Act identified in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174. You are being reissued with this invitation to comply with the requirements identified in those Federal Court decisions. However, please be aware that the Minister has sought special leave to appeal those decisions to the High Court of Australia. If the Minister is granted leave and is ultimately successful in those appeals, this re-issued invitation will be invalid and will be treated as not having been given. In that case, notwithstanding any representations you may have made in response to this re-issued invitation, the Minister will take the position that any revocation/non-revocation decision subsequently made is of no legal effect and that accordingly your visa remains cancelled.

14.     There is one important feature of this statement. It is a statement of the Minister’s intention at a future point in time, if a particular factual circumstance comes to pass. It is not a statement which intends or does treat the Second Invitation as conditional. Nor does it state that the law as stated by the Full Court is conditional in any way. Rather, what the Minister has sought to do is to explain to former visa holders who are re-invited what the Minister’s position will be, at a future time, in a changed factual situation. It is a statement about how the Minister intends to act, if, and only if, the Minister is successful in the High Court of Australia in overturning the decisions in EPL20 and Sillars, such that High Court says that EPL20 and Sillars were wrongly decided in the Full Court. It has been included in the invitation so as to put individuals on notice that the Minister has sought special leave to appeal EPL20 and Sillars, and what the Minister will contend is the consequence if she succeeds in that appeal. It is not a statement of present “conditionality”.

15.     However, it is important to explain why the Minister has contended that in that future and hypothetical scenario, the Second Invitation (and any subsequent decision under s 501CA(4)) will be invalid (and why this proposed course of action is the only lawful course of action that the Minister can take).

D.     THIRD PROPOSITION: THE MINISTER’S FUTURE APPROACH

16.     By issuing the Second Invitation, the Minister has acted (in accordance with EPL20 and Sillars) on the basis that the First Invitation is invalid. This is because the Full Court in EPL20 and Sillars held that “a failure to comply with the statutory obligations requiring notification and inviting representations as required by s 501CA(3)(b) gives rise to jurisdictional error and results in the purported notification and invitation being invalid”: EPL20 [2021] FCAFC 173 at [24].

17.     Because the First Invitation in this case was in the terms that EPL20 and Sillars said did not comply with the Act (because it said that representations had to be “received”, not “dispatched” within 28 days), the Minister has treated the First Invitation as one infected by jurisdictional error, resulting in invalidity.

18.     It is interposed here that this is consistent with the decision in Bhardwaj (2002) 209 CLR 597. In that case, the High Court held that an administrative tribunal, which had made a decision in circumstances which denied procedural fairness to the applicant, had the power to disregard its first decision and reconsider the application. Gaudron and Gummow JJ, in reasons with which McHugh J agreed (Hayne J writing in similar terms at [152]) stated at [51]:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all.

19.     That is precisely what the Minister has done here. Recognising that the First Invitation is in the same terms as the Court in EPL20 and Sillars said made an invitation invalid, the Minister is treating it as invalid. The consequence of treating it as invalid is that prior to 21 December 2021, there was an unperformed duty in s 501CA(3)(b). That subsection required the Minister to “as soon as practicable after making the original decision … invite the person to make representations to the Minister”. The Minister performed that duty by issuing the Second Invitation on 21 December 2021.

20.     However, Bhardwaj was not addressed to the further issue that potentially arises here: that is, what happens if that second purported exercise of power is itself invalid?

21.     That issue potentially arises by reason of the decision of the Full Court in BDS20.

22.     There, the Full Court said that the Minister cannot lawfully issue more than one invitation under s 501CA(3)(b). Where the Minister has issued a valid invitation under s 501CA(3)(b), the Minister has “no power to issue a further invitation”: BDS20 [2021] FCAFC 91 at [75], [76] (Banks-Smith and Jackson JJ). That invitation is of a “singular nature” and the “legislation does not contemplate that there might be more than one” (at [83]). Indeed, this was confirmed in EPL20 itself by the Full Court: “where the first notification was held to have been validly issued … a second notification could not be issued”: EPL20 [2021] FCAFC 173 at [24].

23.     At present, and if present circumstances continue, this causes no difficulty. The First Invitation, on the basis of EPL20 and Sillars, is invalid. The Second Invitation complies with EPL20 and Sillars and is (prima facie) valid.

24.     But if the Minister is successful in the High Court in EPL20 and Sillars, the basis on which the Minister has acted (ie as if the First Invitation lacks legal foundation) will have been premised on a wrong view of the law. That is, if the High Court says that the Full Court in EPL20 and Sillars is wrong, then at all relevant times the First Invitation will have been valid. The applicant will have been properly invited to make representations under s 501CA(3)(b) on 23 May 2018.

25.     This has an important and critical consequence for the Second Invitation. It will have been an act that lacked statutory force. That inevitably follows from what was held by the majority in BDS20, which (as noted above) says that there cannot be more than one valid invitation given under s 501CA(3)(b). The consequence for the applicant will be this: the Minister will have issued a further invitation under s 501CA(3)(b) where she had no power to do so. As noted above, the Minister will not have had power to issue the Second Invitation because the Act does not contemplate that there might be more than one invitation issued: see again BDS20 at [83]

26.     The consequence for any decision made under s 501CA(4) is that it would also be invalid. To make good this proposition, it is necessary to consider further the statutory scheme for revocation decisions.

27.     The power to revoke a visa cancellation decision under s 501CA(4) can only be exercised if two preconditions are both fulfilled. The first is that the person has “made representations in accordance with the invitation” (s 501CA(4)(a)). The second is that the Minister is satisfied the person passes the character test or there is another reason why the original decision should be revoked (s 501CA(4)(b)).

28.     We are presently concerned with the first of these preconditions: that the person has “made representations in accordance with the invitation”. In BDS20 the majority stated at [82] that “the invitation” in s 501CA(4)(a) is “the invitation which the Minister is required to extend by s 501CA(3)(b)”. The majority explained this in BDS20 at [81]:

The power [in s 501CA(4)] arises ‘if’ the matter stated in s 501CA(4)(a) has occurred and ‘if’ the Minister is satisfied as to one (or both) of the requirements in s 501CA(4)(b). In context, the ‘if’ must mean ‘only if’. It is not to be supposed that the Minister may revoke the cancellation – a cancellation the statute requires him to effect – if no representations are made. The appellant thus accepted that s 501CA(4)(a) established an objective jurisdictional fact.

29.     The majority went on to say (at [82]) that the reference to “‘the invitation’ in s 501CA(4)(a) is significant … [t]he inference is inescapable that ‘the invitation’ in s 501CA(4)(a) is the invitation which the Minister is required to extend by s 501CA(3)(b)” (which the majority characterised as being “singular” in nature – see again [83]).

30.     Take then the future hypothetical situation which the Minister sought to address in the Second Invitation: that is, a decision has been made to revoke or not revoke the applicant’s visa cancellation, based on representations made in accordance with the Second Invitation, but the High Court subsequently overturns EPL20 and Sillars, with the effect that the First Invitation was at all times valid.

31.     There will then not have been any valid decision made under s 501CA(4), by reason of the terms of subsection (4)(a). Satisfaction of the matters identified in that subsection is something that is “objectively ascertained”, and is an “objective jurisdictional fact”. It is not something in respect of which the Minister is required to be satisfied, rather, it is “an event which needed to occur”: see Ali v Minister for Home Affairs (2020) 278 FCR 627 at [40] (Collier, Reeves and Derrington JJ).

32.     An exercise of the power conferred by s 501CA(4) premised on compliance with the Second Invitation will be infected with jurisdictional error by reason of that enlivening condition. It will assume the existence of an objective jurisdictional fact that does not in fact exist - the making of representations in accordance with the “singular” invitation for which the Act provides. It will not exist because no representations will have been made “in accordance with” the only valid invitation that was given (the First Invitation).

33. As a consequence, any purported exercise of the power conferred by s 501CA(4) will itself “lack[] statutory force” and be “invalid without need for any court to have determined that the decision is invalid: MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441 at [29] (referring in turn to Bhardwaj). That is all that the Minister has sought to convey by the explanation of her future position in the Second Invitation.

34.     The Minister’s explanation of her future position coheres with the recent decision of Derrington J in Moorcroft v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1348. Relevantly, in that case a delegate of the Minister had refused to grant a visa to Ms Moorcroft on 29 January 2019, the Federal Court made an order quashing the Minister’s refusal decision on 23 March 2020, Ms Moorcroft was granted a visa on 24 March 2020 (in response to the quashing order of the Full Court), but the High Court subsequently set the Federal Court’s quashing order aside.

35.     The consequence was that the 29 January 2019 refusal decision was not affected by jurisdictional error and was a legally valid decision. Derrington J held that the purported decision of the delegate to grant a visa (in reliance on the Full Court’s decision) was affected by jurisdictional error, notwithstanding it was made in response to the order of the Federal Court on 23 March 2020. Derrington J held that there was “no doubt that in the circumstances there was no power under the Act” to grant Ms Moorcroft the visa, “and that is so regardless of the then existence of a decision of this [the Federal] Court … which held, albeit erroneously, that the power existed” (at [2]).

36.     That is, by reason of the subsequent decision of the High Court, the refusal decision made on 29 January 2019 was, and always had been valid. Despite the order of the Federal Court quashing that decision, Derrington J held that “by reason of the High Court’s orders setting this Court’s order aside, that decision was valid from inception including during the interregnum between those two decisions” (at [41], emphasis added). His Honour rejected the submission that an erroneous decision of a Court could “breathe validity into an act purportedly performed under an enactment which is contrary to the scope of the power conferred to do the act” (at [47]) (relying on Oakey Coal Action Alliance Inc v New Acland Coal Pty Ltd (2021) 95 ALJR 128 at [41]).

37.     In the future hypothetical future situation under consideration here, the same result must follow. For the reasons given above, the giving of the Second Invitation would not have been authorised by the Act in those circumstances (notwithstanding the fact that it was issued in accordance with the law as stated in EPL20 and Sillars), and any consequential exercise of power conferred by s 501CA(4) would be infected by jurisdictional error.

38.     It is in those circumstances that the Minister has sought to explain to former visa holders what she intends her position will be if successful, in the future, at both obtaining special leave to appeal EPL20 and Sillars and then being successful in those appeals. That will be the Minister’s position because that is what the Minister understands the law to require. But again, it is emphasised that is addressed to a future contingency that will not arise unless and until the High Court of Australia says that the decisions in EPL20 and Sillars are wrong, with the necessary consequence that the First Invitation was at all relevant times given in accordance with the Act.

E.     FOURTH PROPOSITION: CORRECTNESS OF MINISTER’S POSITION SHOULD BE DETERMINED WHEN (AND IF) IT CRYSTALLISES

39.     The Minister’s written submissions filed 22 December 2021 (MWS) set out at paragraphs 27 to 31 the matters that are not before this Court and they are not repeated here. It suffices to note that the validity of the Second Invitation is not before this Court. This Court does not have jurisdiction with respect to that question because of s 476A(1) of the Act, because the decision of the delegate to issue a new notification under s 501CA(3)(b) does not fall within s 476A(1)(a)-(d).

40.     Throughout this proceeding, the Minister has sought to keep the Court fully informed of the re-invitation process and set out in full the reasons why the Minister has issued the Second Invitation in the terms it has been issued. Notwithstanding this, the Minister’s primary submission is that the correctness of the Minister’s position set out in Section D above should await judicial consideration when (and if) it actually arises. It is by no means certain that it will arise, being relevant only if special leave is granted and if the Minister is successful in her appeal. If that particular factual situation crystallises, the correctness of the Minister’s foreshadowed position can be tested, in a Court that is seized of jurisdiction to decide it (as it was in Moorcroft).

41.     The Minister respectfully submits that such issues should be left for that later time, to be considered on the basis of concrete and not hypothetical facts. That approach is consistent with the proposition that the work of courts ought remain “focused upon the determination of rights, duties and obligations as the most concrete and specific expression of the law in its practical operation”.

(citations omitted)

Discussion

115    Given that the Court has determined this proceeding on a different basis to that now under discussion, any statements the Court might make on the assumption it might be wrong in that regard necessarily will be obiter.

116    Nonetheless it appears to the Court appropriate to at least observe that Ms Wootton’s first proposition; viz that the terms of the re-notification as given to the Applicant on 21 December 2021 is not subject to any conditionality brings to mind the necessity for Lord Atkin’s dissent (now orthodoxy) in Liversidge v Anderson [1942] AC 206 (Liversidge). The Applicant has been advised that if a particular future event occurs (the success of his appeal in a different proceeding) the Minister will take the position “that any revocation/non-revocation decision subsequently made is of no legal effect and that accordingly your visa remains cancelled.” How that can be submitted not to impose a condition is elusive. No authority is cited in that regard. That is not surprising. In anything like ordinary English what the delegate of the Minister stated in their letter of 21 December 2021 is not an unquailed acceptance that the Minister’s original notification to the Applicant was invalid and in law, no decision at all. The only way the proposition that it was an unqualified acceptance of that legal reality can be right is if the Minister has the power to require a word to mean what the Minister chooses it to mean: see Liversidge, p 245.

117    The submission Ms Wootton then advances in support of the Minister’s second proposition; viz that the language the Minister’s delegate used in advising the Applicant that such a circumstance may come to pass is “only a statement of the Minister’s intention at a future point in time, if a particular factual circumstance comes to pass” and thus is “not a statement which intends or does treat the Second Invitation as conditional” equally invites Humpty Dumpty’s approach to the English language. It brings to mind Lord Atkin’s reference to Lewis Carroll’s ‘Through the Looking Glass’ as follows:

I know of only one authority which might justify the suggested method of construction: “‘When I use a word,’ Humpty Dumpty said in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master–that’s all.’

That invitation is not to be accepted. The very notion of something being conditional inherently involves that a future event may or may not come to pass at a future point of time as would change the outcome.

118    Moreover the “hypothetical” event which that codicil anticipates may come to pass (obtaining leave and being successful in a different proceeding in the High Court) as was foreshadowed would change the outcome hardly can be described as hypothetical. To the contrary success in those proceedings in the High Court is an objective actively being pursued by the Minister.

119    It would be indulgent to add further detail in explanation of why the Court remains sceptical of the submissions advanced by Ms Wootton. However if the sum of counsel’s submissions is correct submissions that would replace the neat Bauhuas architecture of legal logic that undergirds the reasoning expressed by Gaudron and Gummow JJ in Bhardwaj at [91] and replace it with a complex gothic structure allowing a decision-maker both to acknowledge their decision to be a nullity while simultaneously asserting it to be capable of future validity. While I accept my observations are obiter, that provides some significant reason to pause before accepting the correctness of such analysis.

Costs

120    The Applicant is unrepresented and, for that reason, not eligible for an award to of costs beyond those he may have incurred for actual expenses. He has not made any submissions that he is out of pocket in those regards. The Minister does not seek costs. I will order that there be no order as to costs.

Associate:

Dated:    1 February 2022