Federal Court of Australia

Lewis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2022] FCA 521

ORDERS

THE COURT ORDERS THAT:

1.    Further to the orders of the Court made on 15 March 2022, the application for review made by the applicant to the second respondent on 2 September 2020 be remitted to the second respondent to be determined according to law.

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

REASONS FOR JUDGMENT

ALLSOP CJ:

Introduction

1    On 15 March 2022, I delivered reasons resolving in the applicant’s favour ground 4 of the applicant’s third amended application for review of a decision of the Administrative Appeals Tribunal to affirm a decision of the delegate of the Minister under s 501CA(4) of the Migration Act 1958 (Cth) not to revoke a mandatory cancellation decision, the Tribunal having determined that it did not have power (or jurisdiction) to review the non-revocation decision: Lewis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 205. The procedural background to this proceeding is described in the reasons therein. Relevantly, ground 4 was successful by reason of the fact that the first and second invitations to make representations given to the applicant under s 501CA(3)(b) were invalid as they were relevantly indistinguishable from those issued by the Minister (and found to be invalid) by the Full Court in Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174; 394 ALR 347 (see also EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173; 395 ALR 36).

2    Orders were made setting aside the decision of the Tribunal and giving an opportunity to the parties to provide any further proposed agreed form of order, failing agreement respective draft forms of order, with 14 days.

3    On 23 March 2022, the parties provided an agreed short minute of order, which sought the following additional relief:

A writ of mandamus issue directed to the second respondent requiring it to determine according to law the application for review made to it by the applicant on 2 September 2020.

4    Following the receipt of this proposed order, I raised with the parties my concerns, and invited further submissions, as to the appropriateness of this order given the invalidity of the invitations and the Minister’s previously stated position that if representations had not been made by the applicant within the time prescribed by reg 2.52 of the Migration Regulations 1994 (Cth), the Tribunal did not have the power to set aside the non-revocation decision.

A matter of complexity

5    The relevant interlocking provisions in the Migration Act concerning the mandatory cancellation of visas have a degree of complexity, and are apt to make the resolution of the appropriate form of relief in this case difficult. This complexity has not been assisted by the apparent inconsistencies and contradictory positions taken by the Minister which emerge from relevant case law, including in this proceeding.

6    The following propositions are relevant to the resolution of this matter and the appropriate form of final relief.

7    First, in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 388 ALR 351 at 362 [42], the High Court held that a notice and invitation under s 503CA(3) which fails adequately to “crystallise” the relevant period for the making of representations ascertained in accordance with r 2.52 of the Regulations is invalid.

8    Secondly, applying EFX17 and Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196; 281 FCR 578, the Full Court in Sillars and EPL20 held that an invitation to make representations which stated that representations had to be “received” by the Minister, as opposed to being “made”, within 28 days of being given the invitation, was invalid: This was the defect here in respect of both notices.

9    Thirdly, the Minister has no power to issue a second valid invitation to make representations or extend the time for compliance with reg 2.52: BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91; 285 FCR 43 (BDS20 Full Court). (An appeal from BDS20 Full Court was allowed by the High Court by consent, but seemingly on the ground that the relevant invitation was in fact invalid, for reasons analogous to Sillars and EPL20: BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCATrans 41 (18 March 2022)).

10    Fourthly, in CHVS v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2022] FCA 34 at [71]–[74], Kerr J held that in circumstances where the Minister issued an invalid invitation and representations were made out of time, the statutory pre-condition for the exercise of the power in s 501CA(4)(a) was never enlivened, and therefore the only relief possible was the setting aside of the delegate’s decision (to refuse to consider the representations) by judicial review. This was said to deny the Tribunal jurisdiction (or power) to review the decision. However, Kerr J appeared to accept, with reference to EPL20 and Sillars and the application of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 24 ALR 307, that the Tribunal may have “authority to review” an invalid decision where representations were in fact considered by the delegate: at [75]–[79].

11    Fifthly, the Full Court in EXT20 v Minister for Home Affairs [2022] FCAFC 75 appeared to accept that an invalid notice and invitation resulting in representations being made within time could enliven the power in s 501CA(4) to revoke or not revoke the cancellation decision. The Full Court rejected the appellant’s claim for judicial review based on the apparently invalid notice on materiality grounds, in circumstances where the Minister considered the representations made within time and embarked on the exercise of the power in s 501CA(4). Implicit in the Full Court’s reasons (albeit with the caveat discussed below) is that an invalid notice in and of itself does not necessarily prevent the power in s 501CA(4) being enlivened. See also Montgomery v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1423 at [101] per SC Derrington J.

12    Sixthly, this Court in this proceeding has no jurisdiction to set aside the delegate’s non-revocation decision, not being a decision made by the Minister personally: s 476A(1) of the Migration Act.

13    In this case, there are two invalid notices. The second notice is not directly covered by BDS20 Full Court, because the first invitation was invalid: see EPL20 at 45 [24]. The applicant did not make representations within 28 days of the first notice, but did make representations within 28 days of the second notice.

14    In light of all this, because the parties have asked me to and because the appellant is in detention, I am prepared to remit the matter to the Tribunal. Based on the propositions outlined above, in particular the reasoning of the Full Court in EXT20 by which I am bound, it is at least arguable that the delegate’s non-revocation power was enlivened by the making of representations by the applicant and their consideration by the delegate, despite the invalidity of the two notices. In accordance with the line of case law stemming from Brian Lawlor 24 ALR 307, it cannot be disputed that the Tribunal has jurisdiction to review the delegate’s decision, even if the delegate’s decision was invalid or beyond power: see also Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; 100 FCR 495 and SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; 168 FCR 487 at 498 [36] (Black CJ and Allsop J).

15    That said, the resolution of this question of further relief has not been assisted by the Minister’s change in position over time in this proceeding. Before the Tribunal and previously in this proceeding, the Minister adopted the position that the making of representations in accordance with an invitation, particularly within the 28 day time period, was an essential statutory pre-condition to the exercise of the delegate’s non-revocation power in s 501CA(4), and therefore the Tribunal had no power to review the delegate’s non-revocation decision. This was despite the fact delegate did consider the representations (which he considered were made within time in his statement of reasons) in making the non-revocation decision, and that the Minister had issued a second (invalid) invitation to the applicant to make representations. Now, contrary to the above, the Minister contends that the power was enlivened, despite no valid notice and invitation ever having been given; and the Minister submits that the 28 day time period stated in reg 2.52 did not apply to prevent consideration by the delegate of the representations if made out of time, because there was no valid invitation.

16    It may also be noted that there remains, at least to me, an apparent inconsistency between CVHS and EXT20. Justice Mortimer in EXT20 at [101]–[102] (with whom Wigney and Snaden JJ agreed on this point) expressly left unresolved the questions arising from EPL20 and Sillars as to whether a valid notice and invitation under s 501CA(3) is a statutory pre-condition for the exercise of the power in 501CA(4), particularly in circumstances where representations are made outside the time period prescribed by reg 2.52 of the Regulations (as was, perhaps, the case here: see [13] above).

17    Given the position adopted by the parties, it will be for the Tribunal on remitter to decide what powers within jurisdiction it has in respect of the non-revocation decision, in accordance with s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) and the Migration Act, albeit only a court exercising the judicial power of the Commonwealth can make a conclusive determination as to the Tribunal’s jurisdiction and powers: City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at 155 [48] per Gleeson CJ, Gummow, Kirby and Hayne JJ and Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16 at [18]–[24] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ. If not for the fact that the appellant remains in detention, I may have referred the question of further relief, particularly the question of the Tribunal’s jurisdiction and powers on remitter, for consideration by a Full Court. Those questions will be left to be resolved on another occasion.

Conclusion

18    In those circumstances, I will make an order remitting the matter to the second respondent to determine according to law.

Associate:

Dated:    9 May 2022