BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The case of BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs involved an application for judicial review of a decision by the Minister not to revoke the mandatory cancellation of the applicant’s visa under section 501CA of the Migration Act 1958. The applicant argued that the Minister should have revoked the visa cancellation despite representations being made out of time. The applicant contended that the Minister had accepted that the representations were made in time but later claimed they were not, and questioned whether the subsequent invitation for further representations had recommenced the running of time.

The primary legal issue before the court was whether the Minister, despite previously having taken the contrary position, lacked the power to revoke the visa cancellation where the representations were made out of time. The court needed to determine if the statutory time period for making representations was mandatory and jurisdictional and if the Minister had the discretion to accept representations made outside the prescribed time frame. Additionally, the court had to consider whether the Minister's subsequent invitation for further representations could recommence the running of time for making representations.

The court found that the statutory time period for making representations under the Act was mandatory and jurisdictional. The criterion for exercising the Minister’s power to revoke a visa cancellation, that the person makes representations in accordance with the invitation, is an objective jurisdictional fact. The period of 28 days within which representations must be made is calculated from when the notice of the decision and particulars of relevant information are given to the person, not from the invitation to make representations. Therefore, time could only start to run once both the notice and the invitation to make representations had been given. Given that the applicant's representations were made out of time, the Minister did not have the power to revoke the visa cancellation. The court dismissed the application for judicial review.

The orders of the court were that the originating application for judicial review filed on 17 March 2020 be dismissed and that the respondent pay the applicant’s costs. The court found no jurisdictional error in the Minister's decision, as the statutory time frame for making representations was mandatory and jurisdictional, and the Minister lacked the power to accept representations made out of time.