Federal Court of Australia

Lewis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 205

ORDERS

THE COURT ORDERS THAT:

1.    The decision of the second respondent be set aside.

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

3.    The parties provide to the Court within 14 days any further proposed agreed form of order, failing agreement respective draft forms of order.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

1    This is an application under s 476A of the Migration Act 1958 (Cth) for judicial review of a decision of the Administrative Appeals Tribunal to affirm a decision of a delegate of the Minister under s 501CA(4) not to revoke a mandatory visa cancellation on the basis that the Tribunal’s power to consider whether to revoke the cancellation had not been enlivened.

2    The question for resolution concerns the Minister’s invitations to the applicant to make representations about revoking the mandatory cancellation of his visa. In essence, two invitations were issued, some few weeks apart, which were materially identical except for their date. Both required receipt from the applicant of any representations within 28 days. The applicant made representations within 28 days of the second invitation, but not the first. The Minister’s delegate treated those representations as having being made within the period and in the manner specified and so considered them, but refused to revoke the cancellation under s 501CA(4). On review before the Tribunal, the Minister changed his position and argued that the s 501CA(4) power to revoke had not in fact been enlivened, it being conditional upon the making of representations within 28 days of the first invitation (there being no power to issue a second invitation and so practically extend the 28 day period). On the authority of BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313, the Tribunal accepted the submissions of the Minister.

3    Since the Tribunal delivered its decision on 4 November 2020, the majority of the Full Court on appeal in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91 have affirmed that the Minister has no power to issue a second invitation under s 501CA(3)(b). However, two further Full Court decisions have been delivered which are an answer to this case: Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 and EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173.

4    By s 501CA(3)(b) as soon as practicable after cancelling the visa, the Minister must “invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations”. Regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) states that representations must be “made…within 28 days after the person is given the notice”. The Full Court in Sillars and EPL20 found that Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196, which held that “made” in reg 2.52(2)(b) means “dispatched” rather than “received”, was not plainly wrong and should be applied. Further, it held that, applying Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 388 ALR 351, by requiring the representations to be “received” by the Minister within 28 days, the invitation incorrectly affixed the time, or in other words, did not provide on its face sufficient information to ascertain the 28-day period and so failed to comply with s 501CA(3)(b), as it did not invite representations within the period ascertained in accordance with reg 2.52(2)(b). The invitations were therefore invalid. The invitation to the applicant, Mr Lewis, contains language materially identical to that found to cause invalidity in the Sillars appeal.

5    The Minister applied to the High Court for special leave to appeal from both the Sillars and EPL20 Full Court decisions. Those applications were dismissed with costs on 10 February 2022. Therefore, this application must succeed and it is unnecessary to consider remaining grounds that had been relied on.

Background

6    The applicant is a citizen of the United Kingdom who arrived in Australia as a child sometime on or after 1984. In 1994, he was granted a Class BF Transitional (Permanent) Visa. On 15 March 2018, the applicant was convicted of unauthorised possession of a firearm and related offences, for which he received a sentence of two years and three months imprisonment. Under s 501(6)(a) of the Act, a person does not pass the character test if they have a “substantial criminal record”, which is satisfied if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c). As a result, by s 501(3A), the Minister was obliged to cancel the applicant’s visa. On 5 June 2018, a delegate of the Minister issued a notice of cancellation to the applicant by registered post to his address at Lithgow Correctional Centre (the first notification). That notice contained an invitation to make representations to the Minister about revoking the cancellation decision in accordance with the instructions provided. The following instructions were provided under the heading “Time-frame to make representations about revocation” (emphasis in the original):

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 s501 CA(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.

If, following lodgement of the Revocation Request Form within the 28 day period, you wish to provide additional information, you may do so. Provided the additional information is received before a decision whether or not to revoke the cancellation is made, the additional information will also be taken into consideration in making the revocation decision.

As this notice was sent by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this notice. A working day does not include weekends or public holidays in the Australian state or territory to where this notice was posted.

7    This notice was marked by Australia Post as having been received at the correctional centre on 12 June 2018.

8    On 6 July 2018, a Services and Programs Officer at the Correctional Centre emailed the Minister’s Department requesting that the papers be resent. A member of the Department replied on 9 July 2018 requesting further information in order to identify the applicant. The Services and Programs Officer responded, later that same day, setting out what she believed to be the cancellation notice or file number identified in the first notification and stated that:

He requires new forms and his 28 days to respond is quickly nearing.

Are we able to get an extension as this man cannot read or write making things very difficult and he is in a part of the gaol that is hard to access inmates.

9    Again, later that same day, a member of the “Character Liability Assessment Team” sent an email to the Officer and others at the Department of Justice with the subject line “Notification of Visa Cancellation” and stated, relevantly (emphasis in the original):

Please note that included with the formal notice is an acknowledgment of receipt - see page 6. Please have Mr Russell LEWIS complete this page and return a copy to our office, preferably via email or fax. Alternatively, please advise by responding to this email address confirming the date on which Mr Russell LEWIS received the cancellation notification with the attached documents.

A delegate of the Minister for Department of Home Affairs has cancelled the visa held by Mr Russell LEWIS pursuant to s.501 of the Migration Act on 05 June 2018.

Please provide the attached cancellation documentation to Mr Russell LEWIS. It is important that the full documentation is provided to Mr Russell LEWIS without delay as there is a limited period of time in which to apply for revocation of the visa cancellation.

10    The email had attachments that included a copy of the letter next referred to.

11    Then a delegate of the Minister caused to be physically delivered to the applicant a letter identical to the first notification in all respects except that it was dated 9 July 2018 (the second notification). May I say at this point, it would appear that members of the Department recognised the difficulties faced by the applicant and sought to remedy those difficulties by giving him more time.

12    On 12 July 2018, the applicant was transferred from Lithgow Correctional Centre to Dawn de Loas Correctional Centre.

13    On 24 July 2018, a Services and Programs Officer at Dawn de Loas Correctional Centre sent by email to the Minister’s Department a request for revocation of the mandatory visa cancellation on behalf of the applicant. It is not clear from the Court Book which documents were attached to that email. According to the reasons of the Tribunal and the delegate’s refusal decision, this was the relevant point at which representations were made in response to the invitation, whereas the applicant submits that he made representations on 17 July 2018. The ‘request for revocation of a mandatory visa cancellation’ and ‘response to notice of intention to consider visa cancellation’ forms as extracted at CB102 and CB105 are dated as signed by the applicant on 17 July 2018. In any event, the representations were made after 13 July 2018, being the expiration of the 28-day period as calculated from the date of the first notification.

14    On 28 August 2020, some two years later, a delegate of the Minister, in purported exercise of power under s 501CA(4), refused to revoke the visa cancellation. The delegate’s decision record makes clear that despite the lateness of the representations calculated by reference to the first notification, the applicant was taken to have made representations in accordance with the invitation. The delegated noted that the applicant was:

originally notified that his visa had been cancelled on 5 June 2018 and was renotified on 9 July 2018. On 24 July 2018 Mr LEWIS made representations, seeking revocation of the mandatory visa cancellation decision Attachments I - L. These representations were made within the period and in a manner set out in the regulations. Thus, I find that Mr LEWIS has made representations in accordance with the invitation, as required under s501CA(4)(a) of the Act.

The Decision of the Administrative Appeals Tribunal

15    On 2 September 2020, the applicant applied to the Tribunal for review of the delegate’s decision under s 500 of the Act. Despite not taking issue with it previously, the Minister submitted that by failing to make representations within 28 days of the first notification, the power under 501CA(4)(a) had not been enlivened and so the Tribunal was without authority. The applicant argued that the second notification constituted a new or fresh invitation or extended the period within which to make representations. On 4 November 2020, the Tribunal delivered reasons agreeing with the Minister and affirming the delegate’s refusal to revoke the visa cancellation.

16    After setting out the background facts, the Tribunal member set out the legislative provisions. Relevantly, ss 501CA(3) and (4) are in the following terms:

(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.

17    Further, reg 2.52(2)(b) of the Regulations provides:

2.52

(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:

…

(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.

18    The Tribunal found that the first notification was valid and the second invalid. Relying on the primary judgments in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313, the Tribunal reasoned that it was impossible for the second notification to satisfy the requirement that notice be given “as soon as practicable after making the original decision” because that had already been achieved by the valid first notification. Therefore, the second notification was incapable of constituting notice within the meaning of s 501CA(3)(b) and unable to extend the 28-day period within which the applicant could make representations sufficient to enliven the revocation power. As the applicant had made representations outside the 28-day period as calculated from the first, purportedly valid, notification, the Tribunal found that the revocation power under s 501CA(4) had not been enlivened and it had no authority to exercise its powers under s 500 of the Act.

The application for judicial review

19    This matter was first heard on 5 July 2021. At the hearing it was resolved that the parties would put on supplementary submissions to address whether the first and second notifications could be considered as part of the same course of correspondence; as constituting one invitation in accordance with the meaning of “invite” in s 501CA(3)(b). Alternatively, whether by issuing a second, albeit invalid notification within the 28-day period, the invitation could no longer be characterised as providing information sufficiently clear to calculate the relevant 28-day period. On 27 September 2021, the day before the second hearing, the Full Court handed down judgment in the Sillars and EPL20 appeals. On the morning of the second hearing, the applicant was granted leave to file a third amended originating application raising a fourth ground in light of the findings in those appeals.

20    The applicant’s third amended application identifies four grounds of review:

1.    The Second Respondent (Tribunal) made a jurisdictional error by implicitly finding at [31] and [33] that the First Respondent (Minister) had no power to re-issue the letter containing the information and invitation required to be given to the Applicant by s 501CA(3) of the Migration Act 1958 (Cth) (Act).

2.    The Tribunal made a jurisdictional error by finding at [31] and [33] that the letter dated 9 July 2019 was ‘wholly ineffective in constituting the relevant notice and invitation required by s 501CA(3)’ of the Act, that the letter dated 9 July 2019 did not change the period in which representations were to be made and that the Applicant had not made representations within the requisite period.

Particulars

3.    In the alternative to grounds 1 and 2, the Tribunal made a jurisdictional error by erroneously determining that the Applicant had not made representations in accordance with the invitation issued by the Minister as required by s 501CA(4)(a) of the Act.

Particulars

4.    The Tribunal’s decision was vitiated by jurisdictional error in that the Tribunal erroneously found that a jurisdictional precondition, the ‘representations’ required by paragraph 501CA(4)(a) of the Migration Act 1958 (Cth), had not been fulfilled.

Particulars

a.     By letter dated 5 June 2018, the Minister purported to invite the applicant, under paragraph 501CA(3)(b) of the Act, to make representations 'within the period … ascertained in accordance with the regulations’ (CB 432), by stating that in effect that the applicants representations were required to be received by the Minister within the 28-day time period (CB 432), whereas the regulations merely required that the representations be despatched within 28 days.

b.     In finding at [30] that the applicant’s representations were not made ‘within the period and the manner ascertained in accordance with the regulations’, the Tribunal erred jurisdictionally because the ‘invitation’ had not correctly crystallised the period for making representations

21    The applicant concedes that the first two grounds rely upon the Minister having power to issue a second invitation or reissue an invitation, which conclusion was rejected by a majority of the Full Court in BDS20 [2021] FCAFC 91. The applicant submits that the majority was wrong for the reasons identified by Rares J in dissent, but concedes that a single judge sitting in the original jurisdiction is bound by a Full Court sitting on appeal from a single judge of this Court. The BDS20 appeal is a complete answer to grounds 1 and 2.

22    As to ground 4, this matter is relevantly indistinguishable from the Sillars appeal and therefore must succeed, not because the representations were made in time pursuant to a valid invitation under s 501CA(3)(b), but because there had never been a valid invitation by the Minister. The conclusion as to the absence of a jurisdictional pre-condition was misconceived. As discussed below, what that means as to relief requires further consideration.

The Sillars appeal

23    The facts of this case need not be traversed in detail but suffice to say they are relevantly similar. Mr Sillars has lived much of his life in Australia. His visa was cancelled pursuant to s 501CA(4) following which the Minister purported to invite Mr Sillars to make representations about revoking the cancellation decision in accordance with instructions. Mr Sillars made representations out of time and some 14 months later, the Minister, not taking issue with the lateness of the representations, decided not to revoke the cancellation. Four days prior to the review hearing before the Tribunal, the Minister raised the “procedural issue” that due to representations being made outside the 28-day period, the Tribunal had no power to revoke. Mr Sillars applied to this Court for judicial review, which application was dismissed by the primary judge. The appeal to the Full Court succeeded by reason of the following instructions provided to Mr Sillars, such wording being relevantly identical to the wording used in the first and second notification in this matter extracted at [6] above (emphasis added):

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 s501 CA(4)(a) of the Act.

As this notice was sent by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this notice. A working day does not include weekends or public holidays in the Australian state or territory to where this notice was posted.

24    In respect of these paragraphs, the Court found:

46 Read together, these paragraphs of the invitation purported to crystallise the period for making representations for the purposes of s 501CA(3)(b) of the Act. However, they did not do so.

47 In Stewart [v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196], the Full Court held (at [43]) that, in reg 2.52(2)(b) of the Regulations, the requirement that the representations responding to the invitation referred to in s 501CA(3)(b) be “made” within the 28-day period does not mean “received” but “dispatched”. At [50] – [51], the Full Court explained:

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

51 The prisoner, in a case like the applicant’s, could not use any email or facsimile facilities at the prison to send his representations because the prison authorities either did not have those facilities or would not make them available to him. All he could do was to give the representations he had already written to the prison authorities and entrust to them the task of communicating them to the Minister as and when they saw fit. He had no control whatsoever over the timing of when the prison authorities might choose to send his representations to the Minister.

48 In the present case, by in effect stating that the appellant’s representations had to be received by the Minister within the 28-day time period, the invitation incorrectly fixed the time under reg 2.52(2)(b). This meant that the invitation was not one under s 501CA(3)(b) to make representations “within the period … ascertained in accordance with the regulations”: EFX17 [Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 338 ALR 351] at [41] – [42].

49 The Minister submits that the Full Court’s analysis in Stewart was plainly wrong and should not be followed. His submissions mirror those advanced in EPL20. For the reasons we have given in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 at [38], we reject that submission. We consider that we should apply Stewart.

50 As an alternative submission, the Minister contends that, even if Stewart is not wrong, and the invitation contained the error we have identified, it does not follow that the invitation was invalid. According to the Minister, one must first consider the extent and consequences of the invitation’s departure from the statutory requirement: Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; 238 CLR 627 at [35] – [36].

51 In this connection, the Minister relies on the process that the appellant adopted for making representations about the revocation of the cancellation decision—a matter to which we will return when considering Ground 4 below. For present purposes, we do not see this case as analogous with SZIZO. As EFX17 demonstrates, the failure to invite representations “within the period … ascertained in accordance with the regulations”, for the purposes of s 501CA(3)(b) of the Act, is not a failure in mere procedure. To apply the reasoning in EFX17 (at [41]) it can hardly be supposed that Parliament intended that a person whose visa had been cancelled would not be given the information that would reveal the date by which representations must be made if the person is to avoid the strict consequences of failing to make representations.

25    Both the first and second notifications issued to the applicant contained language materially identical to that found to cause invalidity in Sillars. Therefore, no valid invitation has been issued under s 501(CA)(3)(b).

26    The Tribunal was not denied jurisdiction for the reasons it gave. However, it is not the function of the Tribunal to exercise judicial review power over the arguably invalid decision of the Minister not to revoke the cancellation of the visa, because of the failure of the Minister to provide a valid notice to Mr Lewis. It may be that it is the Minister’s decision that is the proper subject of challenge in this court under s 39B of the Judiciary Act 1903. It is unnecessary to decide, but there is also a question as to whether the Tribunal was correct to have treated itself as unable to review the delegate’s decision, that is whether it had jurisdiction to review an invalid decision, and in doing so was correct to affirm the delegate’s decision where the Minister submitted and the Tribunal agreed that representations in time were necessary to enliven the s 501CA(4) power. The answer to these questions may impact the appropriate form of relief.

27    As adverted to, on 26 October 2021, the Minister filed applications for special leave to appeal from both the Sillars and EPL20 Full Court decisions. In those applications, the Minister challenged the reasoning relied upon here, that is the reasoning in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 adopted by the Full Court, and the conclusion that failure to affix the correct period of time resulted in invalidity. Those applications for special leave to appeal have been dismissed with costs.

28    Therefore, the decision of the Administrative Appeals Tribunal affirming the Minister’s non-revocation decision should be set aside and the Minister is to pay the applicant’s costs to date. The parties are to provide within 14 days any proposed form of draft further orders, whether by agreement or severally. These orders should deal with at least the questions addressed above, and any other further matters the parties consider appropriate.

Associate:

Dated:    10 March 2022