BVA18 v Minister for Home Affairs (No.2)

This matter came before Judge Cameron of the Federal Circuit Court of Australia. The applicant sought to challenge the Minister for Home Affairs' decision regarding the cancellation of his visa. The central dispute concerned whether the applicant's request for revocation of the cancellation decision was made within the time prescribed by the Migration Regulations 1994.

The court was required to determine two primary legal issues. Firstly, the date on which the applicant was given the notice of visa cancellation for the purposes of calculating the time limit for making a revocation request. Secondly, whether the applicant's revocation request, allegedly lodged with a prison officer on 14 March 2017, was validly made within the 28-day period stipulated by Regulation 2.52 of the Regulations, even though it was not received by the Department until 3 May 2017. This involved considering the definition of "immigration detention" and "officer" under the Act and the Regulations, and whether delivery to such an officer constituted a valid making of the request.

Judge Cameron found that the applicant was given the Cancellation Notice on 15 February 2017, establishing 15 March 2017 as the deadline for his Revocation Request. The court noted that the applicant's argument that delivery to a prison officer on 14 March 2017 constituted a valid making of the request relied on that officer being an "officer" for the purposes of the Act, as defined by ministerial authorisation to include employees of correctional services or prisons departments. The court accepted that the applicant was in immigration detention at the time, which includes being held in a prison. The applicant's principal argument was that the prison officer had an imperative duty to forward the request, and failure to do so within the time limit resulted in the Minister erring. The court found that the applicant had until 15 March 2017 to make his Revocation Request. The evidence showed the request was not forwarded to the Department until 3 May 2017. The court concluded that if this was the date the request was made, it was late and therefore not valid.