CMK22 v Minister for Immigration, Citizenship and Multicultural Affairs
[2022] FedCFamC2G 601
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CMK22 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FedCFamC2G 601
File number(s): MLG 1657 of 2022 Judgment of: JUDGE FORBES Date of judgment: 3 August 2022 Catchwords: MIGRATION – visas – offshore visa holder – cancellation of visa without notice – request for revocation of cancellation – time for making revocation decision – whether there is implied obligation to determine revocation request within reasonable time – whether reasonable time requires determination before expiry date of cancelled visa – decision making framework of subdivision considered - circumstances of particular case – whether mandamus should be directed to Minister Legislation: Migration Act 1958 (Cth), s 36, 79, 80, 82, 116, 117, 128, 129, 131, 132, 133, 424A, 501A
Migration Regulations 1994, reg. 2.46
Cases cited: ASP15 v Commonwealth of Australia (2016) 248 FCR 372
AYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor (2021) 362 FLR 249; [2021] FCCA 1961
BYT20 v Minister for Home Affairs [2020] FCCA 2191
Chhuon v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 198 ALR 500
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 95 ALJR 666
KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020) 279 FCR 1
Knowles v Secretary Department of Defence [2021] FCAFC
Madafferi v Minister for Immigration & Multicultural Affairs [2002] FCAFC 220; (2002) 118 FCR 326
Noeung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1304
Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396
Plaintiff S297/2013 v Minister for Immigration (2014] 255 CLR 179
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Thornton v Repatriation Commission (1981) 35 ALR 485
Tran v Commonwealth of Australia [2021] FCA 580
Division: Division 2 General Federal Law Number of paragraphs: 144 Date of hearing: 20 July 2022 Place: Melbourne Counsel for the Applicant: Mr Aleksov with Mr S Z Stagliorio Solicitor for the Applicant: Clothier Anderson Immigration Lawyers Counsel for the Respondent: Ms Chan Solicitor for the Respondent: Australian Government Solicitor ORDERS
MLG 1657 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CMK22
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
20 JULY 2022
THE COURT ORDERS THAT:
1.A writ of mandamus be directed to the Minister requiring that a decision be made by no later than 3.00pm 21 July 2022, in respect of the revocation request made by the Applicant on Friday 15 July 2022 in respect of the Minister’s decision of 2 July 2022 to cancel the Applicant’s Bridging B visa granted on 15 June 2022.
2.The written reasons shall be published at a later date.
3.The time for any appeal shall not commence to run until the Court has published its written reasons.
4.Costs be determined following the delivery of written reasons.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION
In this proceeding the applicant applied for a remedy under s 476 of the Migration Act 1958 (Cth) (“Act”) in relation to a request made by him pursuant to s 129 of the Act seeking revocation of a decision made by a delegate of the Minister pursuant to s 128 to cancel his Bridging B visa.
On 2 July 2022 the Minister cancelled the applicant’s visa pursuant to s 128 of the Act and issued a notice to that effect under s 129. The cancellation decision had immediate effect. If the visa had not been cancelled the applicant, who is outside of Australia, would have enjoyed international travel rights until the expiry date of the visa (22 July 2022), including the right to re-enter Australia where he has lived for about 7 years.
The notice under s 129 invited the applicant to request revocation of the cancellation. The applicant’s response to the cancellation notice engaged s 131(1) of the Act which gives the Minister power to revoke the visa cancellation. At the time these proceedings were brought the Minister had received the applicant’s revocation request but had not made a decision as to whether or not to revoke the cancellation.
For reasons which will be explained, the applicant sought a writ of mandamus directed to the Minister requiring the Minister to make a decision in relation to his revocation request before the notional expiry date of the cancelled Bridging B visa.
Following an urgent application to the Court, I granted the relief sought by the applicant and pronounced the following orders:
(1)A writ of mandamus be directed to the Minister requiring that a decision be made by no later than 3.00pm 21 July 2022, in respect of the revocation request made by the Applicant on Friday 15 July 2022 in respect of the Minister’s decision of 2 July 2022 to cancel the Applicant’s Bridging B visa granted on 15 June 2022.
(2)The written reasons shall be published at a later date.
(3)The time for any appeal shall not commence to run until the Court has published its written reasons.
(4)Costs be determined following the delivery of written reasons.
These reasons explain the orders made that day.
BACKGROUND
The applicant is a Sri Lankan national.
On 7 January 2015, the applicant applied for a Visitor (subclass 600) visa (“visitor visa”) in order to travel to Australia to attend the ICC Cricket World Cup. In Form 1419 of his application titled “Application for a Visitor visa – Tourism stream”, the applicant declared that he was not known by any other name, including at birth, previous married name or aliases[1].
[1] CB164
On 20 February 2015, the applicant was granted the visitor visa. The applicant subsequently arrived in Australia on 8 March 2015.
Protection visa application
On 3 June 2015, after arriving in Australia, the applicant lodged an application for a Protection (subclass 866) visa (“protection visa”) seeking asylum in Australia. He claims protection from his home country of Sri Lanka, supported by claims of having been sexually and physically assaulted by Sri Lankan police and facing persecution because of his religion. Within this application, the applicant indicated he had not been known by any other name.
On 28 March 2018, a delegate of the Minister refused to grant the applicant a protection visa. This refusal was on the basis that the delegate was not satisfied that the applicant was a person to whom Australia owed protection obligations as outlined in section 36(2)(aa) of the Act.
On 11 April 2018, the applicant lodged an application for merits review of the delegate’s decision with the Administrative Appeals Tribunal (“AAT”). The review of the applicant’s protection visa remains pending. The applicant’s solicitors have sought that the review application be treated with priority by the AAT because of concerns for the applicant’s mental health, but without success[2].
[2] CB68-84
During the period from 21 December 2019 to 21 January 2020, the applicant travelled outside of Australia to Singapore and Malaysia.
Application for Bridging B visa
On 5 January 2022, the applicant applied for a Bridging B visa (“the bridging visa”) to travel overseas in order to visit his wife and child in Dubai.
On 15 June 2022, by way of notice (“the visa Notice”) sent by the Department of Home Affairs, the applicant was granted the bridging visa[3]. The bridging visa enabled the applicant to travel outside of Australia until 22 July 2022. The visa Notice[4] stated that the bridging visa was granted on the basis that the applicant declared his destination country as United Arab Emirates and because the Minister’s delegate was satisfied that the applicant had demonstrated travel reasons that are substantial.
[3] Catherine Jane Farrell affidavit affirmed 19 July 2022, page 51 (“CJF affidavit”) CB9-108
[4] CB16-17
On or around 16 June 2022, the applicant departed Australia and travelled to the United Arab Emirates. The applicant’s presence in UAE is subject to a temporary tourist visa which expires on 9 August 2022[5].
[5] CB102
Prior to departing, the applicant booked a return ticket to Australia for 19 July 2022[6]. It is common ground that any re-entry to Australia under the bridging visa had to occur before
22 July 2022.
[6] CB96
Cancellation of the Applicant’s Bridging B visa
On 2 July 2022, a delegate of the Minister cancelled the applicant’s bridging visa without prior notice pursuant to s 128 of the Act (“Cancellation Decision”)[7]. The delegate was satisfied that there was a ground for doing so under s 116, specifically section 116(1)(d). The Cancellation Decision was made on the basis of the delegate being satisfied that the applicant had provided incorrect information in previous visa applications by declaring that he had not been known by any other name, despite the Department being in possession of information that he had used a different identity to apply for a visa to enter the USA. The reasons for the Cancellation Decision are recorded in a decision record dated 2 July 2022[8] (“Decision Record”).
[7] CB19-22
[8] CB23-30
The delegate’s considerations that resulted in the Cancellation Decision are found in Part B of the Decision Record. Evidence taken into account by the delegate in assessing the grounds for cancellation included that:
(a)in the applicant’s visitor visa application lodged on 7 January 2015, within Form 1419 titled “Application for a Visitor visa – Tourism”, the applicant:
(i)indicated he had not been known by any other name; and
(ii)signed the application to declare that the information he had given was complete, correct and up-to-date; and
(b)in the applicant’s protection visa application lodged on 3 June 2015, within Form 866C titled “Application for a protection visa”, the applicant:
(i)indicated he had not been known by another name;
(ii)indicated he had never been required to show a different date of birth other than the one he provided; and
(iii)indicated that he had not had to use other passport or travel documents; and
(c)information available to the Department indicates the applicant has been known by a different name and that he had used a different identity and passport to apply for a visa to travel to the United States of America[9].
[9] CB27
The Decision Record also sets out reasons which explain the basis for the delegate also being satisfied that it was appropriate to cancel the bridging visa without notice in accordance with Subdivision F of Division 3, Part 2 of the Act.
In Part C of the Decision Record, the delegate was satisfied that the requirements for cancellation under s 128 were met, namely:
(a)there was a ground for cancelling the bridging visa under section 116 of the Act[10];
(b)it was appropriate to cancel the bridging visa in accordance with Subdivision F of the Act[11]; and
(c)the applicant was outside of Australia[12].
[10] section 128(a)(i)
[11] section 128(a)(ii)
[12] section 128(b)
The Cancellation Decision was notified to the applicant pursuant to s 129 on 2 July 2022. The applicant was provided with a copy of the decision record by email. Relevantly, the Notice under s 129 (Cancellation Notice) also included the following statements:
“You are invited to show why you think the ground for cancellation does not exist and/or to give reasons why your visa should not have been cancelled.
If you are able to show that the ground for cancellation does/did not exist, the cancellation of your visa will be revoked. If you cannot show that the ground for cancellation does/did not exist, but there is a reason why you visa should not have been cancelled, the cancellation of your visa may be revoked.
The timeframe in which you must respond to this notice is 28 days….
As you are no longer the holder of an Australian visa, you are not entitled to travel to Australia. If you do, you will be refused immigration clearance and will be removed from Australia.”
Applicant’s application of revocation
On 15 July 2022, by way of a response to the cancellation notice given under s 129, the applicant’s solicitor wrote to the Department requesting revocation of the Cancellation Decision. The email from the applicant’s solicitor to the Department was headed “FOR THE URGENT ATTENTION OF THE MANAGER – REVOCATION DECISION MUST BE MADE BY CLOSE OF BUSINESS MONDAY 18 JULY 2022[13]”. The solicitor’s email also attached a 15 page submission which was headed with the notation “URGENT – MUST BE DECIDED BY THE CLOSE OF BUSINESS, MONDAY, 18 JULY 2022[14]” and contained approximately 50 pages of supporting evidence.
[13] CB32
[14] CB34
In support of the request for revocation, the solicitor reminded the Department that the applicant’s bridging visa was due to expire on 22 July 2022. As such, it was submitted the applicant had been deprived of his statutory right under section 129(1) of the Act to seek revocation within 28 days of the cancellation decision. Given that the applicant is offshore and is required to re-enter Australia by no later than 22 July 2022, his solicitors contended that the Department had not allowed the applicant to utilise the period specified in reg. 2.46 of the Migration Regulations 1994 (“Regulations”). It was submitted, inter alia, that the applicant had been offered a response opportunity which was not meaningful and that if he did not receive a decision on the revocation request by 18 July 2022 (which would afford the applicant enough time to make return travel arrangements), there would be no utility in the revocation process and the process would be “utterly futile”.
The solicitor’s correspondence to the Department indicated that if a revocation decision was not made by close of business on 18 July 2022, urgent instructions would be sought to lodge a mandamus application in the Court to require the Department to do so.
On Saturday, 16 July 2022 at 5.49pm the applicant’s solicitor again emailed the Department, on this occasion marking the email for the urgent attention of the Manager of the visa cancellation section. The solicitor’s email attached a copy of the applicant’s UAE visitor visa and stated:
“…As foreshadowed in my submission of 15 July 2022, it [the UAE visa] expires 9 August 2022, after which [the applicant] will have no entitlement to remain in the UAE and will be forced to consider returning to his place of claimed persecution and home country, Sri Lanka.”[15]
[15] CB100-102
On Monday 18 July 2022 at 12.51pm the applicant’s solicitor received a response from an officer of the Department which stated, relevantly:
“I acknowledge the receipt of your emails in relation to the revocation request and the request for urgent consideration. I confirm that your request has been escalated to a manager for consideration. Please note that I am unable to provide a timeframe of when a decision will be made.”[16]
[16] CB107
PROCEEDINGS IN THIS COURT
The Court was contacted by the applicant’s solicitor via email, at 4.28pm on 18 July 2022, foreshadowing the filing of two urgent applications that evening. The applicant’s solicitor requested that the applications be listed for hearing the following day on the basis that they needed to be heard expeditiously, and because any delay may render any final relief futile. The email specified that the applicant’s cancelled visa was due to expire by operation of law on
22 July 2022.
The applications were received by the Court at 6.43pm on 18 July 2022 and were sealed the following morning. The Minister was named as the respondent in each application.
By one application the applicant sought an order that the Minister’s Cancellation Decision be quashed, on two grounds. Ground 1 contended that the Minister had constructively failed to exercise jurisdiction because the power under s 116(1)(d) of the Act was not engaged. It is not necessary to say more about that ground as it was not ultimately pressed by the applicant. Ground 2 was that the Minister’s decision was affected by legal unreasonableness. The application contended that the decision to cancel the visa was legally unreasonable because it cannot have been based on probative material. The applicant’s response to the cancellation notice is that he has not used a separate identity as alleged in the decision and therefore whatever material was available to the Department cannot have been probative.
By his second application the applicant sought a writ of mandamus directed to the Minister requiring documents to be released to the applicant. This application was grounded on the submission that the Cancellation Notice failed to give adequate particulars as required by
s 129 of the Act and that in the absence of such particulars the applicant cannot meaningfully respond, in an application for revocation, to the grounds relied upon for the cancellation decision.
Both applications were accompanied by an affidavit sworn by Ms Farrell, the applicant’s solicitor, on 18 July 2022, which attached various documents relating to the cancellation of the applicant’s visa and the request for the cancellation to be revoked.
Hearing on 19 July 2022
The matters were listed before me to be heard on an urgent basis at 2.30pm on 19 July 2022.
At the hearing, Mr Aleksov of counsel appeared with Mr Stagliorio for the applicant and Ms Chan of counsel appeared on behalf of the Minister. Ms Chan informed the Court and I accept that she had been briefed to appear at very short notice and unsurprisingly she sought an adjournment.
I proceeded to hear the matter at least to allow Mr Aleksov to make submissions which addressed the need for the applications to be heard urgently.
Counsel for the applicant submitted that if final relief was not granted to the applicant in time for him to leave the UAE and arrive in the Australian migration zone before 11.59pm on Friday 22 July 2022 there would be no utility in the proceedings as the subject matter of the litigation would be destroyed i.e. the Bridging visa B would expire and any order in the nature of certiorari quashing the cancellation decision would be of no utility to the applicant. It was also submitted that there was no injunctive relief available to the applicant as the Cancellation Decision had already been made, leaving him with no option but to press for final relief on an urgent basis.
Further, there was no dispute that prior to its cancellation the Bridging visa B was the only visa authorising the applicant to re-enter Australia. It was also common ground that if the applicant could not return to Australia he would no longer qualify for a protection visa and the AAT review of the decision not to grant him a protection visa would fall away.
Mr Aleksov also pressed for production of the documents relied upon by the delegate to make the Cancellation Decision, submitting that was necessary and appropriate in relation to both applications. He submitted it was clear on the face of the Decision Record that information was available to the Department which led to the delegate’s conclusion that the applicant had another identity which he had used to apply for a US passport and argued that it was necessary as a matter of fairness for that information to be made available to the applicant. However, the material upon which the delegate reached that conclusion was not known to the applicant, had not been disclosed to him and the applicant had instructed his solicitors that there can be no basis for such a conclusion having been reached. Mr Aleksov contended that the Department’s documents would disclose whether there was any proper probative basis for the reason given for cancellation and would reveal the detail of matters to which the applicant should have a fair opportunity to respond.
The Minister opposed the application for production of documents. The Minister also pressed for an adjournment of the final hearing of the applications, arguing that they were not attended by urgency.
Upon hearing the submissions, I was satisfied that there was a reasonably arguable case that the cancellation notice provided to the applicant under s 129 might not have provided sufficient particulars.
Section 129(1)(b) of the Act (which is set out in more detail later in these reasons) requires the Minister to provide particulars of the grounds on which the visa was cancelled and of the information upon which the ground was considered to exist. That provision has been found to require sufficient information as is necessary for the applicant “to provide a meaningful response”[17] . For example, in BYT20 v Minister for Home Affairs[18] the Court found that s 129 required photographs to be provided to an applicant which had been relied upon by the delegate and without which the applicant was unable to meaningfully respond.
[17] Noeung v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1304 at [71]; see also BYT20 v Minister for Home Affairs [2020] FCCA 2191
[18] supra at [62]-[69]
On that basis I considered it appropriate to make an order requiring the Minister to produce documents, although in a more limited form than that sought by the applicant.
Furthermore having regard to the overall justice of the matter, I decided that the Court should expedite the hearing of the applications to the extent that it could, bearing in mind that the Minister should be afforded a reasonable opportunity to respond to the applications. To that end I made the following orders:
(1)Subject to any claims for public interest immunity, the Respondent shall provide to the Applicant’s solicitors by no later than 9.00pm 19 July 2022 all documents relied upon by the delegate to make the decision dated 2 July 2022 to cancel the Applicant’s Bridging visa B, including such information as was available to the Department which indicates that the Applicant used a different identity to apply for a visa to the United States of America.
(2)The matter otherwise be adjourned to 20 July 2022 at 12.00pm.
Amended Application
Shortly prior to the commencement of the hearing on 20 July 2022, my chambers received an email from the applicant’s solicitor attaching an amended application which sought relief in relation the revocation request which had been made to the Minister. Notably, the email stated that the applicant no longer sought to press his first application which concerned judicial review of the cancellation decision.
In the amended application, the applicant sought an order that:
“A writ of mandamus be directed to the Minister, requiring a decision in respect of the revocation request made Friday 15 July 2022 in respect of the Minister’s decision of 2 July 2022 to cancel his bridging B visa to be made by noon 21 July 2022.”
The single ground advanced in support of the amended application was stated as follows:
Having cancelled the Applicant’s bridging B visa under s 128 of the Migration Act 1958 (Cth) the Minister has an implied statutory obligation to decide the revocation request prior to the expiry of that visa
Particulars
Section 129 requires the Minister to give the former holder of the visa a notice, inter alia, inviting the former holder to show, within a specified time, being a prescribed time, that the ground does not exist, or there is a reason why the visa should not have been cancelled, and stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, cancellation might be revoked.
The Minister cancelled the Applicant’s visa on 2 July 2022 knowing his visa expired on 22 July 2022, ie 20 days later.
Having elected to use the s 128 power, and understanding there is a choice of cancellation powers under s 118 and that those powers do not limit or affect each other, the Minister has an implied obligation to decide the revocation request prior to the expiry of the Applicant’s visa.
The prescribed time set out in sub-reg 2.46 of the Migration Regulations 1994 (Cth) is 28 days in circumstances where the visa holder is offshore when given notice of the cancellation.
Should the Minister decide the revocation after the visa expiry, the revocation process is futile and contrary to the intentions of the drafters of s 129.
Hearing on 20 July 2022
At the commencement of the hearing on 20 July 2022, the applicant’s counsel informed the Court that documents had been produced by the Minister pursuant to my orders of the previous day, and that the applicant no longer sought to challenge the Minister’s Cancellation Decision. However, Mr Aleksov sought leave to file and prosecute the amended application.
Ms Chan for the Minister opposed leave being granted for the applicant to amend his application on the basis that the Minister had been given very late notice of the proposed amendment and that she was unprepared to respond to the novel ground which was being advanced. Counsel for the Minister submitted that she would require until the following day.
Mr Aleksov properly conceded that the amended application effectively amounted to a new case but he said that the Minister had been given notice (albeit very short) and that the justice of the matter weighed very heavily in favour of leave to amend being granted. I informed the parties that I would allow Mr Aleksov to address the Court about the nature of the proposed amendment, the relief sought and the issue of urgency, before determining whether I would allow the amendment and/or any request by the Minister for an adjournment.
After hearing counsel for the applicant, whose submissions on the substantive issue are summarised below, I determined shortly after 1.00pm that leave should be granted to the applicant to amend his application. The question arising on the amended application was confined to the construction of the Act and appeared capable of being determined on uncontroversial facts. I considered that the justice of the matter demanded that the application be heard and determined if possible that day so I adjourned the matter until 4.00pm to enable the Minister to respond to the amended application.
The matter reconvened at 4.00pm and Ms Chan made submissions on behalf of the Minister to the effect that the applicant’s construction of the Act was wrong, there is no implied obligation on the Minister requiring a revocation decision to be made before the notional expiry date of the cancelled visa and there had not in any event been any unreasonable delay in dealing with the applicant’s revocation request. The Minister’s submissions are more fully developed later in these reasons.
For completeness I add that at 4.16pm on 20 July, whilst Court was in session, the applicant’s solicitor sent an additional affidavit to my chambers. The affidavit annexed a copy of the applicant’s most recent ticket booked to Australia, which was set to depart at 23:30 Dubai time on 21 July 2022 to arrive in Adelaide at 20:35 local time on 22 July 2022.
STATUTORY FRAMEWORK
It is appropriate at this point to refer to the statutory context within which the application seeking mandamus is to be considered and determined.
It is convenient to start with a reference to the provisions of s 116(1)(d), for that was the ground relied upon by the delegate to cancel the applicant’s bridging visa. Section 116(1)(c) provides as follows:
Subject to subsections (2) and (3) [neither of which are relevant to this matter] the Minister may cancel a visa if he or she is satisfied that:
if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared.
Pursuant to s 117 a visa held by a non-citizen may be cancelled under s 116(1) in various circumstances, including before the non-citizen enters Australia, when the non-citizen is in immigration clearance, when the non-citizen leaves Australia or while the non-citizen is in the immigration zone.
Under Subdivision E (ss118A – 127) the Minister may cancel a visa under s 116, whether its holder is in or outside Australia, after notifying the holder that there appear to be grounds for cancelling it. Under the Subdivision E process, if the Minister is considering cancelling a visa, the Minister must first give particulars of the grounds and of the information on which grounds appear to exist and then invite the holder to show within a specified time that those grounds do not exist or that there is some other reason why the visa should not be cancelled.
In respect of non-citizens who are outside Australia, a different alternative cancellation process is available to the Minister under Subdivision F (ss127A-133). Relevantly, section 128 provides as follows:
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
Under the Subdivision F process the Minister is not required to give any notice to the visa holder prior to cancelling the visa. However, under s 128(a)(ii) the Minister must be satisfied that it is appropriate to cancel in this fashion, which requires the delegate to engage with the fact that there is an alternative means by which the visa could have been cancelled (i.e. on notice)[19].
[19] AYY21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and anor (2021) 362 FLR 249; [2021] FCCA 1961 at [48]-[49]
If the Minister cancels a visa under s 128 (as is the case here), s 129 of the Act applies, which provides:
(1)If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked
(2) The notice is to be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.
Section 128 is only enlivened when the non-citizen is outside Australia. The immediate cancellation of a visa by the Minister without notice pursuant to s 128 has immediate consequences for the former visa holder.
Section 82 sets out numerous circumstances when visas cease to be in effect. Relevantly, s 82(5) states that:
A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa:
(a) has entered Australia in that period or on or before that date; and
(b) is in Australia at the end of that period or on that date.
Moreover, s 79 provides that if the holder of a visa leaves Australia the holder may only
re-enter Australia under that visa if the visa is permission for the re-entry and the visa is in effect on re-entry.
Furthermore, section 80(2) makes clear that a visa to enter Australia within a period is not permission to so enter outside that period.
Suffice to say, it was common ground that the Bridging B visa which had been granted to the applicant on 15 June 2022 only entitled him to re-enter Australia until 22 July 2022. Upon cancellation by the Minister on 2 July 2022 the visa immediately ceased to be in effect and the applicant could not use the visa to travel to and re-enter Australia before 22 July 2022 or at all, unless the cancellation was revoked.
Where the holder of a cancelled visa responds to the invitation in the s 129 notice and requests revocation of the cancellation decision, s 131 is then engaged.
Section 131(1) relevantly provides:
(1)….after considering any response to a notice under section 129 of the cancellation of a Visa, the Minister:
(a) if not satisfied that there was a ground for the cancellation; or
(b) if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
Section 131 is silent as to when the Minister is required to make a decision in relation to a former visa holder’s request for revocation. The question to be determined in this proceeding is whether on a proper construction of s 131 the Court should imply a requirement that the Minister make a decision within a reasonable time and, if so, whether that requires a decision to be made before the notional expiry of the applicant’s cancelled visa.
Section 132 of the Act is not presently relevant as the Minister has not made a decision as to whether or not to revoke a cancellation. However, if and when such a decision is made, the Minister must notify the non-citizen in a prescribed manner.
Section 133 is relevant as it provides what the Minister says is a “complete answer” to the applicant’s claim for relief. Section 133 states:
(1)If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.
(2)Subject to subsection (1), if the cancellation of a visa is revoked, the Minister may vary the time the visa is to be in effect for any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.
The basis on which the Minister contends that s 133 stands as a complete answer was developed in the submissions discussed below.
SUBMISSIONS
In a short written submission provided to the Court in support of the amended application, counsel for the applicant contended that if the revocation decision was not made by noon on 21 July 2022, the applicant would not be able to return to Australia before the expiry of his Bridging visa B. It was submitted that if the applicant did not return to Australia before the expiry of the visa, he will have no lawful option but to return to Sri Lanka, a country where he fears persecution.
It was submitted that in the circumstances of this particular case and this particular applicant, a “reasonable time” for the making of a decision in relation to the revocation request was a time which would enable the applicant, in the event of revocation, to depart from his current location and re-enter the Australian migration zone before 11:59pm on 22 July 2022. In a practical sense, having regard to the availability of flights and travel times between Dubai and Australia, the revocation decision should be made by no later than 21 July 2022.
Counsel submitted that the evidence reveals that despite repeated requests by the applicant’s solicitors for the revocation application to be dealt with as a matter of urgency, correspondence from the Department indicated that it was “unable to provide a timeframe of when a decision will be made” [20]. It was also submitted that based on the correspondence the Department should be taken to be well aware of the applicant’s request for urgent consideration.
[20] CB107
It was submitted that there was no evidence before the Court that any decision in relation to the revocation application was imminent and that the Court should infer from the evidence that, absent an order of the Court, the Minister would not make a decision on the revocation before the notional expiry date of the cancelled visa.
Section 131 of the Act is silent as to the time within which the Minister must consider and make a decision in relation to any revocation request. The applicant contends that silence imports by necessary implication that such a decision must be made within a “reasonable time”. It is submitted that any decision made beyond a reasonable time would involve unreasonable delay and therefore jurisdictional error.
As to what constitutes a “reasonable time” the applicant relied on Plaintiff S297/2013 v Minister for Immigration (2014] 255 CLR 179 where the plurality (Crennan, Bell, Gageler and Keane JJ) said at [37]:
“ … What amounts to a reasonable time is ultimately for determination by a court, on an application for mandamus against the Minister under s 75(v) of the Constitution or equivalent statutory jurisdiction, having regard to the circumstances of the particular case within the context of the decision-making framework established by the Act.” (underlining added)
In support of his submission that in the circumstances of this particular case the reasonable time for the making of a decision by the Minister should be framed by the scope of the international travel rights permitted by the cancelled visa, counsel for the applicant pointed to a number of unique circumstances which pertain to the applicant’s situation and the contextual features of the cancellation and revocation scheme established by the Act.
It was submitted that a particular feature of the applicant’s dilemma is that he is a non-citizen who is outside Australia, as that is a statutory pre-condition for the exercise of the Minister’s power to cancel a visa pursuant to s 128. The legislative scheme which permits cancellation without notice invariably means that when a visa is cancelled while the holder is offshore, the holder of the cancelled visa will be left without a right to re-enter Australia. The only way back is for the visa to be restored by revocation of the cancellation decision.
It was also submitted by counsel that the scheme of the legislation generally, perhaps with some exceptions, permits a non-citizen to only hold one visa at a time. This is relevant because the cancelled bridging visa B is the only visa held by the applicant and, absent revocation of the cancellation, he possesses no other instrument which would authorise his
re-entry to Australia.Counsel also emphasised that the legislative scheme under Subdivision F of the Act contemplates the exercise of Ministerial power to cancel a visa with immediate effect and without any requirement to give the visa-holder notice. Crucially, the right of a visa holder to contest the decision only arises after the cancellation of the visa. The rights, including international travel rights, which attach to the visa are extinguished immediately and remain so unless the cancellation decision is subsequently revoked. In this sense the administrative process under Subdivision F materially differs from the scheme under Subdivision E which requires the Minister to telegraph the possibility of cancellation and afford the visa holder natural justice and procedural fairness before the decision about visa cancellation is made.
The applicant submits that under the Subdivision F scheme the only way a visa holder can salvage and restore the visa and suite of the rights which attach to it is by successfully persuading the Minister to revoke the cancellation pursuant to section 131. It is submitted that while the Act is silent as to the time for making a decision pursuant to section 131, it cannot have been Parliament’s intention that a revocation decision can be left to be made at a time which is futile or practically futile to an applicant. Relying on Project Blue Sky[21] the applicant submits that the Court should construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.
[21] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Put shortly, the applicant contends that Subdivision F provides a scheme which extends a right to a visa holder to seek revocation of a decision made without notice and that scheme must be construed in a manner which ensures that it has utility in a real sense. A right to seek restoration of a cancelled visa, as is undoubtedly extended by s 129(1), would prove meaningless if a decision in relation to revocation could be left until after the substantive rights attached to the cancelled visa (including the right to re-enter Australia) had been extinguished by effluxion of time.
It was also submitted that it was relevant to consider that the visa which was cancelled by the Minister on 2 July 2022 had been issued by a delegate of the Minister only two weeks earlier on 15 June 2022. The Bridging B visa[22] had been granted on the basis that the applicant had declared his destination country as United Arab Emirates and records that the delegate of the Minister was “satisfied that the applicant has demonstrated travel reasons that are substantial”. The visa granted by the Minister’s delegate on 15 June 2022 expressly permits the applicant to travel outside Australia only until 22 July 2022. It is submitted that this last travel date must have been known to the Minister when the visa was cancelled and that it must inform the time within which a revocation decision should be made.
[22] CB16-17
The applicant’s counsel also submitted that it was open to the Court to infer, based on evidence including documents produced by the Minister pursuant to the Court’s orders[23] that the Minister had for some time been in possession of information it believed was a ground for cancellation and had then sat on it waiting for the applicant to depart Australia before relying on that information to cancel his visa. I note the submission, but it is not an inference I am prepared to draw nor is it necessary to determine the issue at hand.
[23] CB121-339, in particular CB333
The Minister opposed the construction of s 131 contended for by the applicant and submitted that there had in any event been no unreasonable delay in the Minister’s consideration of the revocation request.
Counsel for the Minister submitted that the application was without merit because s 133(2) provided a “complete answer” to the applicant’s complaint and the task of statutory construction.
It was submitted on behalf of the Minister that s 133(2), within the statutory scheme of Subdivision F, points against there being a duty on the Minister to make a decision within the timeframe of the cancelled visa. It was submitted that section 133(2) of the Act permits the Minister to vary the time a visa is to be in effect, or the date until which the visa permits its holder to travel to enter to or to remain in Australia. As such, no matter when the Minister decides to revoke the cancellation, the Minister can exercise a discretion under s 133(2) to vary the expiry date in that visa or any period in which the applicant can enter Australia. Accordingly, the Minister submits that there is no statutory obligation for the revocation decision to be made before the expiry date of the cancelled visa because if the revocation was effected after that date s 133(2) gave the Minister power to extend the time of the visa or vary it in other ways. Therefore, the Minister says that there is no futility argument and no urgency for the Court to make a decision.
Counsel for the Minister also submitted that as a matter of statutory construction there was no proper basis for implying into s 131 a requirement that the Minister make a decision on the revocation request before the notional expiry of the cancelled visa. It was submitted that Parliament could have prescribed a timeframe for decision-making in s 131 but it has chosen not to do so. The statute does not reveal any such legislative intention and should be construed in accordance with its words. It was submitted that the applicant’s construction of s 131 was novel and not supported by authority.
Moreover, counsel contended that the Court should not find that there had been unreasonable or excessive delay in the circumstances of this case. In support of the meaning of “reasonable time” the Court was directed to a number of authorities[24]which counsel submitted supported well-established principles, including that
(a)“reasonable” means the circumstances in which a reasonable man might render the delay justified and not capricious;
(b)delay is not unreasonable in the relevant sense if the delay was for a considered reason and not in consequence of neglect, delay or perversity;
(c)administrative and systemic perfection is not required; and
(d)criticisms that a decision maker was too slow, or took steps that are unnecessary, does not evidence unreasonable delay unless they show the presence of perversity, capriciousness, intention, oversight or neglect.
[24] ASP15 v Commonwealth of Australia (2016) 248 FCR 372 at [20]; KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 95 ALJR 666 at [54]; Plaintiff S297_2013 v Minister for Immigration and Border Protection (2014) 255 CLR 179 at [37]; Thornton v Repatriation Commission (1981) 35 ALR 485 at 492; KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs 279 FCR 1 at [175]-[176], [193]; Tran v Commonwealth of Australia [2021] FCA 580 at [15], [41], [63], [65]
Counsel for the Minister also took the Court to the Explanatory Memorandum (EM) supporting s50AN of the Migration Reform Bill 1992, which is now s 128 of the Act. Relevantly, the paragraphs 149 and 150 of the EM explain Subdivision F as follows:
[149] …This Subdivision provides for cancellation of a visa without prior notice. It is intended to be used in circumstances where there is a risk that a visa holder would respond to a notice by travelling to Australia in the belief that it would be more difficult for the person’s visa to be cancelled and the person removed
[150] While there is no pre-cancellation notice, notification provisions will apply after the visa has been cancelled and there is an express power to revoke the cancellation if the former visa holder shows that the ground did not exist or there was a reason why the visa should not be cancelled
Counsel for the Minister also submitted that the alleged implied obligation is too vague and uncertain to be of any meaning. Furthermore, it was argued that the construction contended for by the applicant could lead to absurd outcomes, such as where an applicant makes a very late request for revocation which, in the context of a particular case, might leave the Minister with almost no time to properly consider and determine the request.
Ms Chan submitted that in the context of construing the statute, the applicant’s individual circumstances are not overly relevant.
In reply Mr Aleksov submitted that once a visa reaches its notional expiry date, the visa and the rights which attach to it, by operation of statute, immediately cease to have effect. Relevantly in the context of this case, Mr Aleksov pointed to s 82(5) of the Act.
The applicant submits that once the visa has passed its expiry date, the instrument ceases to have effect by reason of s 82(5) and s 133(1) cannot resurrect it. Section 133(1) operates only to give effect to the visa as if it were granted on the revocation date. Section 131(1) does not extend the visa and cannot breathe life into it if it has already expired before the revocation decision was made. If at the date of revocation the visa was expired and by reason of section 82(5) has ceased to be in effect, treating it as if it had been “re-granted” will not permit its use.
Mr Aleksov submitted that section 133(2) is not the complete answer. Because section 133(2) is expressed as being subject to s 133(1), the Minister’s discretion to vary a visa after revocation presumes the existence of an instrument which has not ceased to be in effect pursuant to section 82. In other words, unless the subject matter of the cancelled visa can be effectively restored by a revocation decision made before the visa passes its use by date, the instrument cannot be given new life by an exercise of ministerial discretion under section 133(2).
CONSIDERATION
The task of statutory interpretation starts with the words of the statute.
Here the relevant provision, s 131 of the Act, is silent as to when a decision is to be made in relation to a revocation request which has been made in response to the invitation contained in a s 129 cancellation notice. Neither party contended that a time is prescribed by the Act.
The applicant’s contention is that the Court should necessarily imply into s 131 an obligation that the revocation decision is to be made within a “reasonable time” which, having regard to the circumstances of this particular case and the context of the decision-making framework established by the Act, requires that a decision be made by the Minister before the expiration date of the cancelled visa.
I agree and I consider in the circumstances of this particular case a failure to make a decision within that timeframe would amount to unreasonable delay.
As the plurality stated in Plaintiff S297/2013 at [37] the decision-making framework established by the Act is an important contextual consideration.
There is no question that s 131 has been engaged by the applicant’s request for revocation made on 15 July 2022. Accordingly, the Minister is required to consider the request for revocation of the cancellation decision and to make a decision in relation to it. Although it is clear that the Minister must exercise his or her power under s 131 in good faith[25], the Act says nothing about when such a decision should be made.
[25] Chhuon v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 198 ALR 500; [2003] FCA 565 per Mansfield J
Guidance as to what is a reasonable time for the making of the decision is to be taken from the overall legislative scheme and particularly the decision-making framework within which s 131 is to be found. Here that decision making framework is embodied in Subdivision F of Division 3 of Part 2 of the Act.
Section 128 of the Act gives power to the Minister to cancel a visa on specified grounds only where the visa holder is outside Australia. Immediate cancellation without notice is not available to the Minister where the visa holder is in Australia.
Invariably, the power under s 128 will be exercised, as here, where a non-citizen leaves Australia on the very visa which the Minister cancels without notice and with immediate effect. The visa on which the applicant travelled to Dubai and the terms of that visa (including its expiry date) are therefore relevant matters to consider in the context of the decision-making framework of the subdivision.
Subdivision F prescribes natural justice and procedural fairness rules for those who are the subject of a cancellation decision. But, as described earlier, the right to seek revocation of a cancellation decision under Subdivision F is materially different from the alternative procedure the Minister could have adopted to cancel the applicant’s visa under Subdivision E.
Under Subdivision E, the Minister must telegraph his or her intention to cancel the visa and must then afford the visa-holder 28 days to persuade the Minister that grounds for cancellation do not exist or that the visa should not be cancelled for some other reason. Under that process the visa holder enjoys the rights which attach to the visa until the visa is cancelled, if at all. If the visa holder is outside Australia he or she may return to Australia during the natural justice period and before a decision is made.
Under the Subdivision F process, the visa holder, who must be out of Australia at the time, is subject to an administrative decision which immediately and without notice cancels the instrument on which they have travelled. The rights which attach to that instrument are of no utility to the visa holder and cannot be restored unless the decision to cancel is revoked.
The rights of a visa holder including the right to pursue revocation are set out across sections 128 – 132 of the Act. Section 133 deals only with the effect of a revocation decision. Pursuant to s 127A, the provisions of Subdivision F are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters dealt with.
Section 129 requires the Minister to state the grounds on which the visa was cancelled and to provide proper particulars of that ground as well as particulars of the information because of which the ground was considered to exist. This mirrors a requirement in Subdivision E, save that under that Subdivision the grounds and particulars must be spelt out before a cancellation decision is made. In any event, the requirement for the Minister to give the non-citizen a notice in accordance with s 129 is plainly a natural justice requirement forming the necessary foundation from which the aggrieved visa holder can respond in his or her request for revocation.
The provision of such grounds and particulars in a notice of cancellation under s 129 then activates the former visa-holder’s right to question or challenge those matters by way of a revocation request, that being the only avenue available to the holder of the cancelled visa. The requirement that a s 129 notice of cancellation include an invitation to seek revocation is integral to the decision making process.
The scheme of Subdivision F contemplates that a person affected by a cancellation decision should be able to request revocation within a prescribed time. The combined effect of ss129(1)(c)-(e), 130 and Reg 2.46 is that an offshore visa holder should have 28 days to seek revocation of the decision.
The Minister’s obligation under s 131 is enlivened by the applicant’s response to the cancellation notice. Under s 131 the Minister must actively turn his or her mind to the applicant’s revocation request and, after doing so, the Minister is required to revoke the cancellation if the Minister is either not satisfied that there was a ground for the cancellation or is satisfied that there is another reason why the cancellation should be revoked. The obligation is compellable and notice of the Minister’s decision, whichever way it goes, must be given under s 132.
The requirement to give a notice under s 129 (including the grounds for cancellation and particulars), the right of the visa holder to seek revocation of the decision and the requirement that the Minister consider and determine the revocation request under s 131 and notify the visa holder of the outcome under s 132, forms a single administrative decision-making process which ensures that natural justice and procedural fairness is afforded to an offshore visa holder whose visa has been cancelled without notice and with immediate effect under s 128. It is the process, indeed the only process, by which the visa holder can seek the restoration of the suite of rights which attach to the visa which has been cancelled.
Section 133 sets out the effect of revocation. It is not engaged unless there has been a decision by the Minister to revoke the cancellation under s 131.
Under s 133(1) the revocation decision gives effect to the cancelled visa as if it was granted on the day of revocation. It only operates to re-grant the visa in its original form. If the revocation decision is made before the expiry date, the visa holder will, by operation of section 133(1), be re-granted the original visa and it will remain effective until the original date[26]. However,
s 133(1) does not automatically extend the expiry date of the visa or the particular date by which return travel is required under that visa. Accordingly, section 133(1) will only operate to restore the original dates if the revocation decision is made before the expiry of those dates.
[26] see Ministerial Policy Document regarding s.133 – Effect of Revocation
Section 133(2) extends to the Minister a power to vary a “re-granted” visa, but there is no obligation on the Minister to do so. Furthermore, the power to vary is not enlivened unless the Minister has made a revocation decision.
One then turns to consider the particular circumstances of this case in the context of the decision-making framework described above.
In Knowles v Secretary Department of Defence [2021] FCAFC at [53], the Full Court, citing Plaintiff S297/2013, observed that whether or not an unreasonable time had passed could be determined on an application for mandamus by reference to the circumstances of a given case. The Court observed that there is an “inherently fact specific quality” to the ascertainment of what is considered a reasonable time.
In considering the circumstances of this case, the following uncontroversial matters are relevant to the Court’s consideration of what constitutes a reasonable time for the making of the revocation decision.
The applicant is a Sri Lankan national. He resides in Australia and has done so since 2015. He has applied for protection in Australia, claiming a fear of persecution if required to return to Sri Lanka. His application for protection has been refused, but he has applied to the AAT for review of the Minister’s decision and he is awaiting a date for that hearing. He has been able to remain in Australia while he awaits that review of his protection application and in the meantime has undertaken studies here[27] and operates a business[28].
[27] CB85-88
[28] CB65-67
The applicant applied for and was granted a Bridging B visa to enable him to leave Australia for a short period to reunite with his wife and child in Dubai. A delegate of the Minister granted the visa to him on 15 June 2022 on the basis that he/she was satisfied that the applicant had demonstrated travel reasons which are substantial. The Bridging B visa was the only instrument which enabled the applicant to re-enter Australia and it was a condition of the visa that he do so before 22 July 2022. If the applicant does not return to Australia by that date the visa ceases to have effect[29] and he has no right of re-entry[30].
[29] s 82(5)
[30] s 79
Before leaving Australia the applicant booked a return ticket. He left Australia for the UAE on 16 June 2022 and had a ticket for a return flight departing on 19 July 2022, arriving 20 July 2022. Prior to leaving Australia he was issued with a tourist/short-stay visa by the UAE with an expiry date of 9 August 2022.
The Bridging B visa on which he travelled was cancelled on 2 July 2022 without notice. By reason of the cancellation, the applicant cannot re-enter Australia. The applicant cannot lawfully remain in the UAE beyond 9 August 2022.
The applicant was invited to request revocation in the s 129 cancellation notice. He made a request for revocation within the 28 days prescribed by the regulations under s 130 and upon doing so s 131 was engaged.
However, the 28 days prescribed by s 129(3) for the making of a revocation request was not in any practical sense available to the applicant. That was a consequence of the Minister’s decision to cancel a visa which was to expire 20 days after the decision was made. Furthermore, certain information relevant to the ground of cancellation was not produced to the applicant before he made his revocation request on 15 July 2022 and was only produced after the Court Order on 19 July 2022. These particular circumstances, unique to this applicant, also inform my consideration of when the Minister should be required to determine the request under s 131.
Even if not cancelled the Bridging B visa did not permit return travel to Australia after
22 July 2022. In order to return to Australia before the expiry date of the cancelled visa, the applicant had to depart on a flight which could arrive within the Australian migration zone by 11.59pm on 22 July 2022. In a practical sense, that would require him to make arrangements, travel to the airport at Dubai and depart by 21 July 2022.
In my view the decision-making scheme of Subdivision F gives rise to a powerful implication that the Minister’s obligation to consider and determine a revocation application under s 131 should be discharged within a time which is capable of effecting a restoration of the cancelled rights in both a legal and practical sense. The natural justice objectives of the decision making scheme would in my opinion be defeated if the Minister were able to determine the revocation request after the utility of the visa had been lost forever. It strikes me as inimical to the legislative scheme in Subdivision F that the reasonable time for the making of a revocation decision should be construed as being at large.
In circumstances where the original visa rights can only be restored by a decision which is made before they expire (which is the effect of s. 133(1)) and where the scheme of applying for revocation is directed at correcting or reversing incorrect cancellations, there is a strong inference that Parliament intended revocation decisions to be made within the time within which it is capable to restore the cancelled visa and the rights which attached to it, including the right of re-entry to Australia.
A consideration which weighs in favour of this construction is that the Minister has chosen to adopt a process under Subdivision F which involves immediate cancellation of a visa whilst its holder is offshore. That was not the only process available to the Minister, but in deciding to follow that path the expiry date of the cancelled visa necessarily looms as a critical date beyond which a revocation decision in favour of the applicant may be of no utility.
The Minister’s discretion in section 133(2) is not the complete answer. Nor, in my view, does the Explanatory Memorandum to the Migration Reform Bill 1992 (“EM”) lend weight to the construction for which the Minister contends.
Whilst the EM discloses that the purpose of immediate cancellation is to prevent a visa holder from returning to Australia in the belief that doing so might make cancellation or removal more difficult, the EM clearly recognises the visa holder’s right to proper notice of the reasons for the cancellation and the right to seek revocation of the cancellation if shown to be without a proper ground or for some other reason. The EM does not speak to the time within which a decision should be made on the revocation request.
Paragraphs 156 and 157 of the EM address what is now s 133 of the Act. Paragraph 156 explains that the intended effect of s 133(1), which in the event of revocation of cancellation treats the original visa as having been granted on the revocation, is to “allow additional time for the visa holder to make fresh preparations for travel to Australia”. However, this presumes that the original visa, if “granted on the revocation”, is capable of allowing return travel to Australia. Where, as here, the cancelled visa has fixed travel dates, which may have expired before a revocation decision, re-granting that visa will be of no utility to the visa holder.
If anything, paragraphs 156 and 157 of the EM assume that a revocation decision will be made before the effective dates of the cancelled visa expire.
In my opinion the intended purpose of s 133(1) is to re-enliven the cancelled visa to enable the visa holder to return to Australia within the time permitted by that visa. The intended purpose of s 133(2), which operates subject to subsection (1), is to allow the Minister to make additional changes to the visa “to ensure that the holder has adequate time to prepare for travel to Australia” – suggesting a minor tweaking to the visa to facilitate departure in what might be a very compressed timeframe. As Mr Aleksov for the applicant submitted, s 133(2) assumes the existence of a visa which can be adjusted, not one which has passed its expiry date.
To the extent the EM informs the question of what is a reasonable time for the making of a revocation decision by the Minister, in my view it points to such a decision being required prior to or immediately proximate to the expiry dates of the visa which authorises the visa holder’s re-entry to Australia. The power of the Minister to vary the dates in a visa is not exercisable unless a revocation decision has been made. The discretion under s 133(2) provides no answer to the dilemma faced by the holder of a cancelled visa whose visa for return travel has been cancelled and who, having made a request for revocation within the prescribed time, sits in limbo with no right of re-entry to Australia and possibly no other option than return to the country from which he faces persecution.
Where, as here, the applicant’s visa has been cancelled, his right of re-entry and residence in Australia denied to him, and he has sought revocation of that decision in a timely manner, the statute by implication requires the revocation decision to be made before the date the original visa expires.
In this particular case the evidence does not disclose any likelihood of a revocation decision being made before the expiry of the last day of travel rights under the cancelled visa. There is evidence that the applicant’s solicitors have submitted a detailed revocation submission and they have impressed upon the Department several times and right up until the hearing of this matter that the request is deserving of urgent consideration. The response from the Department was to note the request for urgency but to give no indication as to the timeframe within which a decision might be made.
No evidence was provided to the Court by the Minister that the decision was imminent and no indication was given by counsel as to when a decision might be made. Whilst I accept the urgency of the application compromised the ability of the respondent’s solicitors to obtain instructions and their capacity to file affidavit material, if a revocation decision was imminent or even in train the Court could easily have been informed. No such indication was given.
Rather, the Minister opposed the construction of s 131 contended for by the applicant (as a minister was perfectly entitled to do) and submitted that there was no implied statutory requirement for a decision to be made on the revocation before 22 July 2022 and therefore no proper basis for the application.
Based on the above matters, it was open to the Court to infer that no decision would be made within what the Court has now determined to be, in the circumstances of this case, a reasonable time. Accordingly, upon being satisfied that the exercise of the Minister’s obligation under
s 131 will be occasioned by unreasonable delay, the relief sought by the applicant is appropriate.
It is of course not for the Court to direct the Minister to decide the revocation request in favour of or against the applicant’s request. That is entirely a matter for the Minister exercising discretion under s 131. But the request should be considered and determined before a favourable decision is of no utility.
Disposition
For the reason set out above, on 20 July 2022 I pronounced the orders set out at paragraph [5].
Further to those orders and having regard to the procedural background - including the applicant’s abandonment of his application relating to the Cancellation Decision and the applicant’s late amendments - I invite each party to file a submission of no more than 3 pages on the question of costs.
Any submission on the question of costs should be filed by no later than 7 days from the date of these reasons and the question will be determined on the papers.
I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes. Associate:
Dated: 3 August 2022
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