EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 436
•4 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436
File number(s): SYG 2583 of 2020 Judgment of: JUDGE DRIVER Date of judgment: 4 June 2021 Catchwords: MIGRATION – Review of a purported visa cancellation decision – wrong visa cancelled – decision a nullity – subsequent detention of the applicant unlawful – observations on the operation and validity of regulations relating to the notification of the purported decision. Legislation: Commonwealth of Australia Constitution Act 1901 (Cth) s 109
Migration Act 1958 (Cth) ss 6, 35, 66, 477, 494, 494A, 494B, 494C, 501, 501CA, 504
Migration Amendment Regulations 2000 (No 2) (Cth)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth)
Migration Regulations 1994 (Cth)
Cases cited: ACCC v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2015] FCA 1274
Ali v Minister for Home Affairs [2020] FCAFC 109
Anderson v Assistant Minister for Immigration and Border Protection [2018] FCA 888
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176
Butt v Minister for Immigration and Border Protection [2014] FCA 1354
CSR Ltd v Eddy (2005) 226 CLR 1
DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492
EFX17 v Minister for Immigration and Border Protection (2019) 273 FCR 508
Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582
GLD18 v Minister for Home Affairs [2020] FCAFC 2
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123
Johnson v Minister for Immigration and Multicultural and Indigenous Affairs (No 3) (2004) 136 FCR 494
Jones v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 261
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421
Minister for Immigration & Multicultural & Indigenous Affairs v Nystrom (2006) 228 CLR 566
Minister for Immigration & Multicultural & Indigenous Affairs v Schwart [2003] FCAFC 229
Momcilovic v R (2011) 245 CLR 1
Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17
Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757
Nystrom v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 143 FCR 420
Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1
Roberts v Minister for Immigration and Multicultural Affairs (2004) 39 AAR 370
Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86
Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313
Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
Work Health Authority v Outback BallooningPty Ltd (2019) 266 CLR 428
Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419
Number of paragraphs: 125 Date of last submission/s: 26 March 2021 Dates of hearing: 8 and 18 March 2021 Place: Sydney Counsel for the Applicant: Mr A Hochroth Solicitor for the Applicant: Legal Aid NSW Counsel for the Respondent: Mr C Lenehan SC, with Mr G Johnson Solicitor for the Respondent: Australian Government Solicitor ORDERS
SYG 2583 of 2020 BETWEEN: EUF20
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
4 JUNE 2021
THE COURT DECLARES THAT:
1.The applicant’s ex citizen visa was not cancelled by the Minister’s delegate under s 501(3A) of the Migration Act 1958 (Cth).
THE COURT ORDERS THAT:
1.The applicant be released from immigration detention forthwith.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision made by a delegate of the Minister (delegate) to cancel a visa purportedly held by the applicant. The applicant contends that the delegate’s decision is a nullity because he did not hold the visa which was purportedly cancelled. The applicant also raises important issues concerning the notification of the cancellation decision and his response to it. The outcome of the case is important to the applicant because he was taken into immigration detention in consequence of the purported cancellation decision and his apparent failure to seek revocation of that decision within the time stipulated.
In this decision, I find that the delegate fell into jurisdictional error in making the purported cancellation decision with the consequence that the purported cancellation is a nullity and the purported notification of it is also of no legal effect.
I have also taken the opportunity to make observations on the operation of the legislation governing the notification of cancellation decisions and for the making of responses thereto. Those observations extend to the validity of certain regulations.
The following statement of background facts is derived from the submissions of the parties.
In 2008 the applicant, a citizen of Afghanistan, came to Australia. In 2014 he was granted Australian citizenship by conferral.
On 15 April 2016 the applicant was convicted in the District Court of New South Wales of four counts of “Robbery in Company” and sentenced to an aggregate term of imprisonment of eight years and two months.[1]
[1] Court Book (CB) 105
On the revocation of his Australian citizenship, the applicant was taken to have been granted an ex-citizen visa, by operation of s 35 of the Migration Act 1958 (Cth) (the Migration Act).
A notice dated 6 March 2019, purportedly issued under s 501CA(3)(a) of the Migration Act (the Notice), was sent to the applicant in March 2019.[2] At the time, the applicant was serving a full time custodial sentence at Parklea Correctional Centre.
[2] CB 48-51
The Notice stated:[3]
You were granted a Class AQ Subclass 150 Former Citizen visa on 21 June 2018 (your visa). The purpose of this notice is to advise you that on 06 March 2019, your visa was cancelled (original decision) under section 501(3A) of the Migration Act 1958 (‘the Act’).
[3] CB 48
In fact, the applicant did not hold, and has never held, a Class AQ Subclass 150 former citizen visa (a visa subclass abolished prior to his arrival in Australia).
The applicant provided the Notice to a solicitor, whom he instructed to make representations seeking revocation of the visa cancellation under s 501CA(4) of the Migration Act.[4] The lawyer did so, and sent those representations to the Minister’s Department by express post.[5] Australia Post tracking records show that the representations were delivered to the Minister’s Department on 18 April 2019,[6] although the copy of the representations in the Minister’s Department’s possession is stamped as received on 23 April 2019.[7]
[4] CB 38
[5] CB 172
[6] CB 174
[7] CB 145
On 1 May 2019, the Minister’s Department informed the applicant that it considered his representations were not made within the required time frame and therefore the Minister could not consider revoking the cancellation of his visa.[8]
[8] CB 180
THE CURRENT PROCEEDINGS
These proceedings began with a show cause application filed on 16 November 2020. This was substantially outside the time prescribed by s 477(1) of the Migration Act. At the trial of this matter which commenced on 8 March 2021 and following submissions by the parties, I was satisfied that the interests of the administration of justice required the granting of the extension of time and ordered that under s 477(2) of the Migration Act, the time for the filing of the application be extended up to and including 16 November 2020.
At the trial, the applicant also sought leave to file and rely upon a further amended application in a form handed up in court. Leave was not opposed and I granted it. The further amended application was filed on 10 March 2021 and raises the following grounds:
1.No valid decision has been made to cancel the applicant’s ex-citizen visa under s 501(3A) of the Act.
Particulars
a.The applicant was granted an ex-citizen visa by operation of s 35 of the Act on 21 June 2018, upon his ceasing to be an Australian citizen.
b. On 6 March 2019 the respondent, by his delegate, purported to cancel under s 501(3A) a Class AQ Subclass 150 Former Citizen visa held by the applicant (the purported cancellation decision).
c.The applicant has never held a Class AQ Subclass 150 Former Citizen visa.
d. In the premises, the purported cancellation decision is a nullity: Minister for Immigration and Multicultural and Indigenous Affairs v Schwart [2003] FCAFC 229; Anderson v Assistant Minister for Immigration and Border Protection [2018] FCA 888 at [44].
2.In the alternative to Ground 1, if a valid decision was made to cancel the applicant’s ex-citizen visa under s 501(3A) of the Act (the original decision), the respondent has failed to discharge his duties under s 501CA(3) of the Act.
Particulars
a.On making the original decision, the respondent was required under s 501CA(3) of the Act to give the applicant a written notice that sets out the original decision, and particulars of the relevant information (within the meaning of s 501CA(2) of the Act), and invite the applicant to make representations to the Minister make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
b. The respondent sent the applicant a document titled “Notice of visa cancellation under section 501(3A) of the Migration Act 1958” dated 6 March 2019 (the Notice), purportedly pursuant to s 501CA(3) of the Act.
c. The applicant received the Notice on 21 March 2019.
d.In response to the Notice, the applicant, by his solicitor, made representations to the respondent pursuant to s 501CA(4)(a) of the Act.
e.By letter dated 1 May 2019 (the 1 May Letter), the Department of Immigration informed the applicant that it considered that his representations were not made within the time frame required by reg 2.52(2)(b) of the Migration Regulations 1994 (Cth) (the Regulations) and therefore that the respondent cannot consider revoking the original decision.
f. The respondent has not considered whether to exercise his power under s 501CA(4) of the Act to revoke the original decision.
g. By reason of the above matters, the respondent has failed to carry out his duties under s 501CA(3) of the Act, because the Notice:
i.referred to a purported decision of the respondent to cancel a non-existent “Class AQ Subclass 150 Former Citizen visa”;
ii.did not refer to any decision of the respondent to cancel the applicant’s ex-citizen visa;
iii.accordingly, did not “set out” the original decision within the meaning of s 501CA(3)(a)(i) of the Act; and
iv.further or alternatively, accordingly did not invite the applicant to make representations “about revocation of the original decision” within the meaning of s 501CA(3)(b) of the Act.
3.In the further alternative to Grounds 1 and 2, if the original decision was made and if the respondent did discharge his duties under s 501CA(3) of the Act, the respondent has failed to discharge his duties under s 501CA(4) of the Act.
Particulars
a. Particulars (a)-(f) to ground 2 above are repeated.
b. The Notice stated that:
i.any representations the applicant wished to make could be sent by mail (among other methods); and
ii. if sent by mail, the representations should be sent to:
National Character Consideration Centre
Department of Home Affairs
GPO Box 241
MELBOURNE VIC 3001
(the NCCC Address).
c.The applicant’s solicitor made, in the sense of “dispatched”, the applicant’s representations by express post on 17 April 2019 to the NCCC Address, being 27 days after the applicant received the Notice, being within the period prescribed by reg 2.52(2)(b) of the Regulations.
d.In the alternative to particular (c), the applicant’s representations were delivered to the NCCC Address on 18 April 2019, 28 days after the applicant received the Notice, being within the period prescribed by reg 2.52(2)(b) of the Regulations.
e.In the premises, the view expressed in the 1 May Letter, that the applicant’s representations were not made within the time frame required by reg 2.52(2)(b) of the Regulations and therefore that the respondent cannot consider revoking the original decision, was incorrect and the respondent in failing to consider revoking the original decision has not discharged his duties under s 501CA(4) of the Act.
f.The view expressed in the 1 May Letter appears to have been based upon:
i.the proposition that representations are “made” at the date they are received—if so, that proposition is incorrect, as in the statutory context “made” means “dispatched”: Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 at [43];
ii.the proposition that the applicant was deemed to have received the Notice 7 working days after the date of the Notice pursuant to s 494C(4)(a) of the Act—if so, that proposition is incorrect, as the Notice was not sent to an address provided to the respondent by the applicant for the purposes of receiving documents within the meaning of s 494B(4) of the Act;
iii.the proposition that the applicant was deemed to have received the Notice 7 working days after the date of the Notice pursuant to reg 2.55(7)(a) of the Regulations—if so, that proposition is incorrect because:
1.reg 2.55 does not operate in respect of a notice given by pre-paid post under s 501CA(3)(a) of the Act, and sub-clauses (1)(a) and/or (1)(c) of reg 2.55, is or are invalid to the extent those sub-clauses purport to apply reg 2.55 to such a notice, because otherwise reg 2.55 would operate inconsistently with s 501CA(3)(a), s 494A(1) and/or ss 494B(4) and 494C(4) of the Act; or
2.alternatively, reg 2.55 must be interpreted consistently with ss 494B(4) and 494C(4) of the Act: accord Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151 at [30]; and
iv.the proposition that the representations were not received until 23 April 2019, being the date the representations were “received by Decipha”—if so, that proposition is incorrect because the representations were delivered to the NCCC Address on 18 April 2019.
(errors in original)
I have before me as evidence the court book filed on 18 December 2020 which includes some affidavit evidence.
I also received the affidavit of Thomas James Ellison made on 4 March 2021 which deals with facts relevant to the purported notification of the purported cancellation decision.
Counsel for the Minister sought also to read an affidavit by Christopher James Montgomery made on 4 March 2021. That was opposed by counsel for the applicant. At the trial I marked the document for identification.[9] Mr Montgomery deposes as to facts which might provide some explanation for the erroneous cancellation decision. I have decided not to receive that affidavit because it does not bear upon any issue of dispute between the parties. It is common ground that the applicant did not hold the class of visa that was purportedly cancelled. What is important is the legal consequence of the error, not any attempted explanation of it.
[9] MFI R1
The matter was heard over two days on 8 and 18 March 2021. Time did not permit a thorough explanation in oral submissions of the applicant’s assertion concerning the invalidity of certain regulations relating to the notification of the cancellation decision. I called for post hearing submissions on that issue and further written submissions were provided.
I have been substantially assisted by the helpful submissions of counsel, both orally and in writing.
CONSIDERATION
Ground 1 – what is the legal consequence of the error in the cancellation decision?
Applicant’s submissions
The Federal Court has consistently held that where the Minister purports to cancel a visa of a different class to the visa in fact held by a person, that decision is a nullity.
The leading decision is Minister for Immigration and Multicultural and Indigenous Affairs v Schwart.[10] In that case, Mr Schwart had been granted an entry permit under s 6(1) of the Migration Act as it then stood when he arrived in Australia in 1984. The entry permit was, pursuant to regulation 4(1) of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth), taken from 1 September 1994 to be a transitional (permanent) visa that permitted Mr Schwart to remain indefinitely in Australia. Mr Schwart was thereafter referred to as holding a “resident visa (subclass K1412)”.
[10] [2003] FCAFC 229
A Departmental memorandum, prepared by a case officer, was sent to the Minister headed “Issues for Consideration of Possible Cancellation of Subclass 155 - Five Year Resident Return Visa Under s 501(2) of the Migration Act 1958”. The memorandum annexed a page headed “Minister’s Decision on Cancellation Under s 501(2)”, which the Minister signed. That page contained language to the effect that the Minister had “considered all relevant matters” and after determining that Mr Schwart did not meet the character test, “I have decided to exercise my discretion under subsection 501(2) of the Act to cancel the visa”. The Departmental memorandum and decision page did not otherwise identify “the visa” purported to be cancelled[11] (although annexures to the memorandum made reference to Mr Schwart holding a “resident visa (subclass K1412))”.[12]
[11] Schwart at [18]-[20]
[12] see Schwart at [23]
The Full Federal Court (Tamberlin, Mansfield and Emmett JJ) held that the purported cancellation was a nullity. The Court rejected the Minister’s submission that “on a fair reading of the Memorandum, it should be construed as a decision cancelling the only visa held by the respondent, being the visa referred to under the subheading ‘Immigration History of Visa Holder’”, as that was not what the Memorandum purported to do. Instead, their Honours observed, the Memorandum made it:[13]
quite clear that the issues for consideration by the Minister involved the possible cancellation of ‘Subclass 155 - 5 Year Resident Return Visa’.” … “[r]ead literally, the Memorandum can refer only to that visa the possible cancellation of which was to be the subject of consideration by the Minister.
[13] at [30]
At [31], their Honours held:
The Memorandum purports to cancel a visa that did not exist. The Minister’s purported decision was a nullity.
The decision in Schwart has been applied many times since.[14] In particular, in Anderson v Assistant Minister for Immigration and Border Protection,[15] Reeves J accepted the submission of the Assistant Minister that a decision under s 501(3A) of the Migration Act which identified the wrong visa class was a nullity, applying Schwart. His Honour held at [44]:
In this matter, it is clear from the letter dated 5 January 2015 that the 17 December 2014 decision was directed to a Class BF transitional (permanent) visa, and only that visa. As has been explained above, Mr Anderson was never the holder of such a visa. It necessarily follows that, in making the 17 December 2014 decision, the Minister or his delegate purported to cancel a visa that did not exist. That being so, applying Schwart, I consider I am bound to hold that the 17 December 2014 decision was a nullity.
[14] See Roberts v Minister for Immigration and Multicultural Affairs (2004) 39 AAR 370 at [43]-[46] (French J); Nystrom v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 143 FCR 420 at [16] (Moore and Gyles JJ, Emmett J dissenting on other grounds) (reversed on other grounds: Minister for Immigration & Multicultural & Indigenous Affairs v Nystrom (2006) 228 CLR 566); Sales v Minister for Immigration and Citizenship (2008) 171 FCR 56 at [96] (Buchanan J, Gyles and Graham JJ agreeing); see also Johnson v Minister for Immigration & Multicultural & Indigenous Affairs (No 3) (2004) 136 FCR 494 (French J); Nguyen v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 757 at [36] (Lee J)
[15] [2018] FCA 888
The present case is said to fall squarely within the Schwart line of authority. The decision record is at CB 27-29. It identifies the visa held by the applicant as a “Class AQ Subclass 150 Former Citizen visa”. It states that, being satisfied of the requirements of s 501(3A)(a) and (b) of the Migration Act, the decision maker considered that “I must cancel [the applicant’s] Class AQ Subclass 150 Former Citizen visa granted on 21 June 2018.” Nowhere does the decision make any reference to the visa actually held by the applicant, namely an ex-citizen visa. Despite the similarity in names, a Class AQ Subclass 150 former citizen visa is not an ex-citizen visa. It is, rather, a class of visa established under the Migration Regulations 1994 (Cth) (Regulations), Schedule 1 former item 1117, which was repealed on 1 July 2000.[16]
[16] See Migration Amendment Regulations 2000 (No 2) (Cth), Schedule 3, items 3203 and 33067
Schwart has not been applied in a case where the visa misdescription was a simple typographical error.[17] However, the present case is said not to be of that nature.
[17] Jones v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 141 FCR 261 (R D Nicholson J)
For the above reasons, the applicant submits that the decision of the delegate on 6 March 2019 purporting to cancel the applicant’s visa was a nullity. It follows that the applicant is not (and has never been) an unlawful non-citizen and should be released from immigration detention forthwith.
Minister’s submissions
In the first ground the applicant contends that the decision to cancel his visa pursuant to s 501(3A) of the Migration Act was invalid. The reason for this, he submits, is that the Minister purported to cancel a visa of a different class to the visa in fact held by the applicant, citing Schwart. The Full Federal Court in Schwart held at [31] that a decision purporting to cancel a particular visa held by a non-citizen, in circumstances where the person did not hold such a visa, is a nullity. Schwart concerned a decision made by the Minister in the exercise of discretion under s 501(2) of the Migration Act. Justice Reeves applied the reasoning in Schwart to a case involving a decision under s 501(3A).[18]
[18] Anderson
As noted above, there is no dispute in the proceedings that the visa referred to in the Notice as having been held by the applicant (a Class AQ Subclass 150 Former Citizen visa) was not in fact the visa the applicant held prior to 6 March 2019.
The Minister submits that, contrary to the applicant’s submission, this case is not on all fours with Schwart. The essence of the Full Federal Court’s reasoning in Schwart at [33] was that it was not possible, on an evaluation of the evidence in that case, to be certain that the Minister understood, when signing the “Decision Page”, what he was doing. Their Honours stated that, “If the Minister exercises the important discretionary power conferred by s 501, there should be no doubt that that is what he is doing”.
In the present case, whilst there is an erroneous reference in the Notice to the particular visa subclass, the applicant nevertheless did hold an ex-citizen visa under s 35 of the Migration Act.[19] Further, the Notice referred expressly to the visa granted on 21 June 2018. The Minister submits that that can only be a reference to the applicant’s ex-citizen visa.
[19] The Class AQ Subclass 150 Former Citizen visa was repealed on 1 July 2000 by operation of the Migration Amendment Regulations 2000 (No 2) (Cth), Schedule 3, items 3203 and 33067
The Minister submits that it cannot, in those circumstances, be inferred that the delegate who cancelled the visa did not know what he or she was doing. The applicant at the time of the visa cancellation only held one visa. The error in its description does not give rise to any doubt about what the delegate was doing (particularly when regard is had to the matters identified above). The Notice did not, read fairly and without an eye attuned to error, involve “wholly incorrect references to the relevant vis[a]”.[20]
[20] cf Jones at [44] and see also Anderson at [42]-[44]
The Minister contends that, even if the Court were to be satisfied that an error of the kind identified in Schwart affected the Notice in the present case, the effect on the validity of the cancellation decision must be assessed in light of Hossain v Minister for Immigration and Border Protection[21] and Minister for Immigration and Border Protection v SZMTA.[22]
[21] (2018) 264 CLR 123
[22] (2019) 264 CLR 421
Further, the Minister contends that even on the hypothesis, as advanced by the applicant, that the delegate did not understand that he or she was cancelling the correct visa, the decision to cancel cannot possibly have been any different had the delegate understood that he or she was cancelling the visa the applicant in fact held. The power to cancel a visa under s 501(3A) is not a discretionary power.[23] The Minister, or his delegate, must cancel the visa if satisfied that the person does not pass the character test and the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. Further:
(a)s 501(5) provides that the rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3A); and
(b)the duty imposed by s 501(3A) does not turn upon the non-citizen holding a particular class of visa. In intractable terms, it provides the Minister must cancel “a visa that has been granted to a person” if the conditions in sub-paras (a) and (b) are met. There can be no question that they were.
[23] EFX17 v Minister for Immigration and Border Protection (2019) 273 FCR 508 at [78]
In those circumstances, the Minister submits that any misunderstanding by the delegate as to the type of visa the applicant held cannot possibly have made any difference, whatsoever, to the exercise of power conferred by s 501(3A). The mandatory nature of the power, and the conditions attending its exercise, are said to simply deny any different possible outcome.
The Minister concedes that Anderson also concerned an exercise of power under s 501(3A). However, the question of materiality and the relevance of Hossain and SZMTA were not considered in that matter, and not (it would seem) the subject of any submissions. A decision is said not to be authority for a proposition that is not the subject of argument.[24]
[24] See, eg, CSR Ltd v Eddy (2005) 226 CLR 1 at 11 [13]; ACCC v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2015] FCA 1274 at [21] (Edelman J)
Resolution
I prefer the applicant’s submissions in relation to the first ground. I consider myself bound by the decision of the Full Federal Court in Schwart. My finding that the purported cancellation decision is a nullity is the consequence of jurisdictional error. The error made by the delegate was in misidentifying the visa to be cancelled. This was a fundamental error in fact finding which goes to jurisdiction. It is, in my view, a jurisdictional fact that the person whose visa is being cancelled holds that visa. My decision would be the same even if the delegate’s task was to cancel any visa held by the applicant rather than the particular visa supposedly held by him. That is because, in making such a decision, if the delegate only cancels a visa which is not held by the applicant, the delegate will not have performed the statutory task required of them.
I also agree with the applicant’s submissions on the question of the materiality of the error.
The concept of materiality the subject of Hossain and SZMTA has no application to Ground 1 of this application.
The essence of the reasoning in Hossain is found at [29] (Kiefel CJ, Gageler and Keane JJ):
Ordinarily, a statute which impliedly requires that condition or another condition to be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision that might be made in breach of the condition. The statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance.
As can be seen from that passage, materiality is relevant only where there has been a breach of some condition imposed by the statute.
The decision in SZMTA similarly makes clear that materiality is relevant only to a breach of a statutory condition on the exercise of power.[25]
[25] see at [45] per Bell, Gageler and Keane JJ
The concept of materiality is simply inapposite to Ground 1 of this application. The applicant does not say that the purported cancellation decision was invalid because of a breach of some express or implied condition of the exercise of power found in s 501(3A) of the Migration Act. Rather, the applicant says that the decision is a nullity because the subject of the decision (a Class AQ Subclass 150 Former Citizen visa) did not exist.
The applicant does not seek a writ of certiorari. Instead, he seeks a declaration that his visa has not been cancelled, and an order that he be released from immigration detention. Similar relief was sought in Schwart at [4].
The decision in Schwart does not require reconsideration in light of Hossain and SZMTA. Schwart did not concern whether there had been a breach of any statutory condition in making a decision to cancel. Rather, it concerned the proper characterisation of the Minister’s decision. The Minister accepted that a decision purporting to cancel a visa that did not exist would be a nullity. He argued at [17] that his decision should be read as a decision to “cancel whatever visa the respondent then held”. That was rejected. The same result should be reached in the present case. Neither does the recent decision of the High Court in MZAPC v Minister for Immigration and Border Protection[26] affect the above reasoning.
Ground 2 – was the purported Notice of the purported cancellation valid?
[26] [2021] HCA 17
Applicant’s contentions
Section 501CA(3)(a)(i) of the Migration Act provides that as soon as practicable after making an “original decision” (defined in s 501CA(1) as a decision under s 501(3A) “to cancel a visa that has been granted to a person”), the Minister must give the person “a written notice that sets out the original decision”.
If (ex hypothesi) the “original decision” in the present case was a decision to cancel the applicant’s ex-citizen visa, then the applicant contends that the Notice issued to the applicant did not “set out” that decision. As set out above, the Notice informed the applicant, incorrectly, that the Minister had cancelled his “Class AQ Subclass 150 Former Citizen visa”, a visa which the applicant had never held.
The applicant is not aware of any authorities which have considered the requirements of s 501CA(3)(a)(i) of the Migration Act. However, in EFX17, Rares J held at [181]:
What the Minister does under s 501CA(3) must be effective, in the circumstances, to communicate to the imprisoned holder of the revoked visa notification of the decision and an invitation that he or she will have to make representations for its revocation within the 28 days and in a manner that will comply with all of the highly prescriptive requirements in the regulations.
(applicant’s emphasis retained)
The following matters are said to support the proposition that a notice issued purportedly under s 501CA(3)(a) of the Migration Act which does not accurately identify the visa which has been cancelled is not a notice which “sets out the original decision” within the meaning of that section:
(a)the purpose of s 501CA is to provide a person who has been the subject of a decision under s 501(3A), in circumstances where natural justice does not apply to the decision made under s 501(3A), an opportunity to make representations about why their visa should not remain cancelled;[27]
(b)the giving of a valid notice under s 501CA(3) is the commencement of a “period” within which the person is invited to make representations about cancellation. The relevant period under regulation 2.52(2)(b) is 28 days. There is no discretion to extend time; and
(c)giving a notice under s 501CA(3)(a) will thus potentially affect the entitlement of the person to remain in Australia. As the Full Federal Court in Schwart commented at [32] “[w]here the entitlement of an individual to remain in Australia is in issue in the making of a decision, the Australian community is entitled to expect that the documentation in relation to the making of such a significant decision is prepared with care.”
[27] see EFX17 at [78]-[87] per Greenwood J
In these circumstances, the applicant submits that a notice under s 501CA(3)(a) will only “set out” the original decision if it describes the original decision with clarity.[28] The recipient of such a notice should not be placed under any illusion that the notice has been issued in error. That is especially so given that the recipient will inevitably be in full time custody. There will be little if any opportunity for the recipient to clarify the position, given the 28 day time limit on making representations.
[28] compare, in the context of notification of visa refusal decisions under s 66(2) of the Migration Act, DFQ17 v Minister for Immigration and Border Protection (2019) 270 FCR 492 at [58]
At the resumed hearing on 18 March 2021, counsel for the applicant sought to find further support for the above propositions in the recent decision of the High Court in Minister for Immigration and Border Protection v EFX17,[29] in particular at [25], [26], [29] and [30].
[29] [2021] HCA 9
The applicant submits that the Notice did not “set out” any decision of the Minister to cancel the only “visa that [had] been granted” to the applicant, namely his ex-citizen visa. For that reason, it was not validly issued and time for the applicant to make representations under s 501CA(3)(b) has not started running.
Minister’s contentions
In the second ground the applicant contends, on the hypothesis that the applicant’s visa was validly cancelled under s 501(3A), that the Minister failed to discharge his duties under s 501CA(3) of the Migration Act.
Section 501CA relevantly states:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(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.
As stated above, on 6 March 2019 an officer of the Minister’s Department sent to the applicant the Notice.[30] The sole basis of challenge to the Notice is that refers to the applicant having been granted a “Class AQ Subclass 150 Former Citizen visa”. The Minister submits that the argument should be rejected.
[30] CB 48
First, there is said to be no statutory basis to support the submission that in order to be valid, a notice issued under s 501CA(3) must refer by name to the visa that was cancelled. Neither is there is any statutory basis to support the submission that a notice otherwise validly issued under s 501CA(3) will be invalid because it mistakenly refers to a visa that the person did not hold. The Minister’s duty was (in part) to give the person, in the way that the Minister considers appropriate in the circumstances, “a written notice that sets out the original decision”.
Noting that the ground is advanced on the assumption that the “original decision” for the purposes of s 501CA(1) was validly made, a point addressed above in respect of the first ground, all that the Minister needed to do in complying with his duty under s 501CA(3) was to give to the applicant notice that stated that a decision had been made under s 501(3A) to cancel a visa that was granted to him. At the time his visa was cancelled the applicant only held one visa (as was he was notified following the revocation of his Australian citizenship[31]). The Notice identified the visa he held as the one that he was granted on 21 June 2018. That was more than sufficient compliance with the requirements of s 501CA(3).
[31] CB 25
Secondly, the applicant calls in aid of his construction of s 501CA(3) the Full Federal Court judgments in DFQ17 and EFX17. Neither of those cases is on point. DFQ17 concerned the requirements of a notification issued pursuant to s 66 of the Migration Act and the manner in which the notification described the applicable time limits for seeking review of a decision to refuse to grant a visa. EFX17 did concern, in part, a notification issued under s 501CA(3), but in particular the question of whether the notification was effective due to the applicant’s inability to read and comprehend the notification due to illiteracy and health issues.[32] The Minister submits that neither case advanced by the applicant supports the proposition that a s 501CA(3) notice must identify or describe the actual visa that was cancelled, nor that an error in describing the visa that was cancelled results in invalidity of the notification.
[32] the Minister appealed EFX17 to the High Court, which dismissed the appeal on 10 March 2021 on the basis of a notice of contention: Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
Resolution
There is some overlap between this ground and Ground 3. I agree with the applicant that as the purported cancellation is a nullity, there could be no valid notification of that decision. I also agree with the applicant that, even if the cancellation decision had been valid and effective, the notification of it was not, at least until the notification was delivered by hand to the applicant. The purported notification was sent by post to a post office box associated with Parklea Correctional Centre. I agree with the applicant that a post office address is not a residential address. Neither was it an address provided by the applicant for the purposes of communications. Further, the manner of delivery of the Notice bears upon the time for responding to it. The Minister’s Department recognised that the posting of the purported notice to the post office address was unlikely to bring the Notice to the attention of the applicant in a timely way. Some analogy here can be drawn with the decision of the High Court of EFX17 on the notice of contention, where purported email notification of the cancellation decision was ineffective. In the present case, the Minister’s Department requested the prison staff to hand deliver the purported notification to the applicant and have him sign for it. That was not done until 21 March 2019.[33] In my view, the postal component of the notification process not being undertaken consistently with the requirements of the Migration Act and Regulations, effective notice could not have been achieved until 21 March 2019 when the purported Notice was hand delivered. It follows, in my view, for the purposes of this ground and Ground 3, that the time for the making of a submission or response to the notification, if it had been valid, would not have started to run until 21 March 2019.
Ground 3 – were the representations on behalf of the applicant made within time?
[33] see CB 46-47, 143-144
Applicant’s contentions
Pursuant to regulation 2.52(2)(b), the applicant was required to make representations under s 501CA(3)(b) “within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act”.
The applicant contends that he made representations within 28 days of being given the Notice. The Minister’s Department’s determination that he did not do so was based upon two misconceptions: the first as to when the applicant was “given” the notice and particulars of relevant information, and the second as to when the applicant “made” his representations.
The Minister’s Department’s reasoning is set out in an email dated 30 April 2019.[34] The reasoning was that:
(a)the Notice was sent by registered post on 6 March 2019; the “deemed 7 day delivery” plus 28 days would make the due date 12 April 2019;
(b)the applicant signed a notification receipt dated 21 March 2019; 28 days from that date gives a due date of 18 April 2019; and
(c)the representations were sent by registered post, received “by Port Melbourne on 18 April” but only “by Decipha on 23 April 2019” which, even allowing for a public holiday on 19 April 2019, was out of time on either view.
[34] CB 177
The reference to “deemed 7 day delivery” in the email referred to above suggests that the Minister’s Department was of the view that s 494C(4) of the Migration Act applied to deem the applicant as having received the Notice seven working days after its date of 6 March 2019, ie on 15 March 2019. If so, in the applicant’s submission, that view was incorrect.
Section 494C(4) of the Migration Act provides that a person is taken to have received a document from the Minister seven working days after the date of the document “[i]f the Minister gives a document to a person by the method in subsection 494B(4)”.
The Minister did not, however, give the Notice to the applicant by the method in s 494B(4) of the Migration Act. Subsection 494B(4), which is concerned with giving a document by pre-paid post, only applies if the document is dispatched to “the last address for service provided to the Minister by the recipient for the purposes of receiving documents” or “the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents”.[35]
[35] section 494B(4)(c)
The Notice was addressed as follows:[36]
Mr …
MIN: …
Parklea Correctional Centre
PO Box 6148 Delivery Centre
Blacktown, NSW, 2148
[36] CB 48
That is not a residential address.[37] Nor is it a business address. The Minister thus could only take the benefit of the deeming in s 494C(4) if the address was an “address for service” provided to the Minister by the applicant for the purposes of receiving documents.
[37] see DFQ17 at [27]
There is no evidence that this occurred. Rather, it appears that the Minister’s Department sent the Notice to the above address because on 5 July 2018, the applicant advised the Minister’s Department that he had recently been moved from Oberon Correctional Centre to Parklea Correctional Centre and as a result had not received correspondence from the Minister’s Department (advising him of the revocation of his Australian citizenship).[38] There is no suggestion, however, that the applicant gave the Minister’s Department the PO Box address on the Notice, or any address, as his address for service for the purpose of receiving documents.
[38] CB 34
The applicant submits that, accordingly, the deeming provision in s 494C did not operate. The applicant was thus “given” the Notice within the meaning of regulation 2.52(b) on the date on which he was in fact given it, namely 21 March 2019.[39] On that basis, the date by which the applicant was required to make representations was 18 April 2019.
[39] CB 144
The applicant’s solicitor sent his representations by express post on 17 April 2019.[40] The express post envelope containing the representations is recorded as having “arrived” (ie delivered by Australia Post) on 18 April 2019.[41] Notwithstanding those matters, as set out above, the Minister’s Department took the view that the applicant had not “made” his representations until 23 April 2019, or possibly 19 April 2019.
[40] CB 174
[41] CB 174
There are said to be two problems with the Minister’s Department’s reasoning. First, an applicant’s representations are “made” for the purpose of regulation 2.52(2)(b) at the time the representations are dispatched, rather than at the time they are received by the Minister.[42] In that case, the person’s representations were held to have been “made” when handed to Correctional Services officers for the purposes of being sent to the Minister. In the present case, the representations were “made” at the latest when the applicant’s solicitors posted them on 17 April 2019.
[42] see Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 at [29]-[55] (Rares, Anastassiou and Stewart JJ)
Secondly, and in any event, the representations were received by the Minister’s Department[43] on 18 April 2019. So if receipt is relevant, the representations were still received in time.
[43] “by Port Melbourne”: CB 177
The Minister’s Department’s contrary view seems to turn on when the representations were “received by Decipha”. There is no evidence as to what that means. It may, perhaps, be inferred that Decipha is a communications management system employed by the Minister’s Department. In any event, when representations are “made” for the purposes of regulation 2.52(2)(b) cannot depend upon the Minister and the Minister’s Department’s internal arrangements for receiving communications.
Minister’s contentions
Section 501CA(3)(b), as set out above, requires the Minister to 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. Regulation 2.52 of the Regulations sets out various requirements for representations made under s 501CA(3)(b). It provides relevantly:
(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.
Regulation 2.55 of the Regulations provides for the way in which the Minister must give a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Migration Act. It relevantly provides:
(3)Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i)is at the person’s last residential or business address known to the Minister; and
(ii)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i)within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to the last fax number, email address or other electronic address known to the Minister.
The Regulations deem a person to have received documents, as set out in regulation 2.55(7), in the following terms:
(7)If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia—7 working days (in the place of that address) after the date of the document; or
(b) in any other case—21 days after the date of the document.
There are said to be two relevant questions that arise for consideration. First, on what date is the applicant taken to have received the Notice? Secondly, on what date did the applicant make his representations to the Minister? These questions arise in light of recent authority of the Federal Court that the 28 day time period prescribed in the Regulations imposes an inflexible time period in which an applicant for revocation is required to make representations.[44] Further, the Minister does not have discretion to extend, excuse or waive the time limit prescribed by the Regulations.[45] The Minister acknowledges that the Court’s judgment in BDS20 was the subject of an appeal before the Full Federal Court, and is presently reserved for judgment. The judgment in Sillars has also been appealed, but is yet to be heard by the Full Federal Court.
[44] BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 at [48]
[45] Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313 at [92]
As to the question of when the applicant should be taken to have been “given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act”, the Minister submits that the Minister gave the notice as required under the Migration Act and the Regulations.
The Minister sent the Notice to the applicant by dispatching it within three working days to the last residential or post box address known to him. The Notice was dispatched by registered post on 7 March 2019.[46] It was sent by registered post[47] to the PO Box for Parklea Correctional Centre. The Minister submit that it was unnecessary for the applicant to have given or to have nominated the address in order for it to be the last residential or post box address known to the Minister. The Minister was aware, and it is the fact, that the applicant was at the time of the cancellation of his visa incarcerated at Parklea Correctional Centre. Further, to the extent the applicant submits that an address for a prison cannot be a person’s “residential address”, this is contrary to Sillars, at [50] and [54]-[55]. This Court is bound to follow that decision.[48] Nothing said in DFQ17 calls into question that aspect of Sillars.
[46] see the affidavit of Mr Ellison
[47] CB 142
[48] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [61]
On that basis, the Minister contends that the applicant is taken to have received the Notice on 15 March 2019.[49] Accordingly, the applicant needed to have made his representations by 12 April 2019.
[49] regulation 2.55(7)(a)
As to the question of when the applicant made his representations, in Stewart the Full Federal Court addressed the question of whether a person is taken to have made representations for the purposes of s 501CA(4)(a) when the representations are dispatched, or when they are received by the Minister’s Department. The Full Federal Court concluded at [43] that by reference to the statutory context and purpose, a person makes representations in accordance with the requirement in s 501CA(4)(a) when the representations are dispatched, not when they are received by the Minister’s Department. The Full Federal Court held at [50] that 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. The Full Federal Court concluded in that case at [55] that the applicant made his representations when he gave them to the corrective services officers to be sent to the Minister, and that this occurred within the prescribed period.
Whilst the factual circumstances of the present case differ from those in Stewart, in particular, that the applicant here had engaged lawyers to assist him in making representations to the Minister’s Department, and it was the lawyers that arranged for the representations to be sent, the Minister accepts that the Court is bound to apply Stewart. Relevantly, applied to the present context, the applicant should be taken to have made the representations on the date that he, through his solicitors, sent them. That date appears from the evidence to be 17 April 2019, the date on which the mailed package of documents was received by Australia Post.[50]
[50] CB 174
The Minister submits that, accordingly, the applicant having been required to make representations by 12 April 2019, and his having not done so until 17 April 2019, results in the conclusion that the representations were not made within time. It also is said to follow that the officer of the Minister’s Department was correct to have formed the view that the Minister’s power under s 501CA(4) could not be, and was not, enlivened in this case.[51]
[51] CB 180
The Minister contends that ultimately whether s 501CA(4)(a) was satisfied is a question of objective jurisdictional fact for the Court to determine[52]. The Court should, having regard to the evidence before it, and on a correct understanding of the law, conclude that the applicant’s representations were made outside of the time limitations provided for in regulation 2.52(2)(b).
[52] Ali v Minister for Home Affairs [2020] FCAFC 109 at [40]
Resolution
It is not strictly necessary to deal with this ground because of my earlier findings that both the cancellation decision and purported notification of it were legally ineffective. Further, as I have already stated at [60] above in relation to Ground 2, in my view, time did not commence to run in response to the purported notification until hand delivery was effected on 21 March 2019.
It nevertheless follows that I agree in general terms with the applicant’s submissions in relation to this ground. However, to the extent that my reasoning differs from that of the applicant in relation to Ground 2 and this ground, I rely on my own reasoning.
The validity of the Regulations
As noted above, I called for post hearing written submissions on this issue as time did not permit it to be addressed properly in oral submissions.
Minister’s contentions
The applicant’s contention is that regulation 2.55 does not operate in respect of a notice given under s 501CA(3)(a) of the Migration Act, and that regulation 2.55(1)(a) and/or (c) is invalid to the extent that the sub-clauses purport to apply regulation 2.55 to such a notice. He contends in this respect that regulation 2.55 would otherwise operation inconsistently with s 501CA(3)(a), s 494A(1) and/or s 494B(4) and s 494C(4) of the Migration Act. He contends in the alternative that regulation 2.55 must be “interpreted consistently” with ss 494B(4) and 494C(4) of the Migration Act.
The first question is whether regulation 2.55(1)(a) or (c) is invalid, or invalid to the extent that those sub-clauses purport to apply regulation 2.55 to a notice given under s 501CA(3)(a).
It is common ground that the regulation-making power under the Migration Act is found in s 504(1) of the Migration Act. That power is subject to an express stipulation that the Governor-General may make regulations “not inconsistent with this Act”. That stipulation is consistent with well-established principle that even absent that constraint, delegated legislation cannot be repugnant to the Migration Act which confers the power to make it.[53] Section 504(1) provides:
[53] Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at 41-42 [54] (French CJ), citing Federal Capital Commission v Laristan Building and Investment Co Pty Ltd (1929) 42 CLR 582 at 588 (Dixon J).
(1)The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act and, without limiting the generality of the foregoing, may make regulations:
…
(e) making provision for and in relation to:
(i) the giving of documents to;
(ii) the lodging of documents with; or
(iii) the service of documents on;
the Minister, the Secretary or any other person or body, for the purposes of this Act; …
That is, the Governor-General’s authority to make regulations under the Migration Act arises where the matters sought to be prescribed are “required or permitted to be prescribed” or “which are necessary or convenient to be prescribed for carrying out or giving effect to this Act”. That authority extends expressly to the making of regulations “for and in relation to” the giving of documents to the Minister, the Secretary or any other person or body, for the purposes of this Act. The ambit of the words “for and in relation to” is sufficiently broad to encompass the making of regulations that deem a person to have received a document at a certain point in time after the document was sent. Regulation 2.55 is plainly authorised by s 504(1).
That, of course, is subject to the proviso referred to at [91] above, that such regulations are not “inconsistent with this Act”.
Such inconsistency (or repugnancy) may be demonstrated in a number of ways. One clear (but “rare”[54]) case arises where the statute and the regulations contain conflicting commands. The applicant (with respect correctly) does not appear to contend that this is an example of such a case. He rather calls in aid the passage from Morton v Union Steamship Co of New Zealand Ltd[55]. Underlying that passage is the notion identified by Gummow J Plaintiff M47/2012 at [134] where his Honour stated:
The reference in Morton to "intention" is to be understood to pose the question whether upon its true construction the statute deals completely and thus exclusively with the subject matter of the regulation in question with the consequence that the regulation detracts from or impairs that operation of the statute.
[54] Herzfeld, Prince and Tully “Interpretation and use of Legal Sources” Thomson Reuters 2013, page 376
[55] (1951) 83 CLR 402
In making that point, his Honour made reference to his own earlier reasons in Momcilovic v R[56] at [261], where (in the context of an argument put on the basis of s 109 of the Commonwealth of Australia Constitution Act 1901 (Cth) (Constitution)), he stated:
…, the detailed character of the federal law may evince a legislative "intention", in the sense given to that term in the passage from Zheng v Cai set out at [146] of these reasons, to deal completely and thus exclusively with the law governing a particular subject-matter. That proposition…may be treated as presenting a "negative implication" criterion …The question then is whether the State law is upon the same subject-matter as the federal law and, if so, whether the State law is inconsistent with it because it detracts from or impairs that negative implication. But the first question, and what Aickin J called "the central question", always is one of statutory interpretation to discern legislative "intent" or "intention”.
(Minister’s emphasis retained)
[56] (2011) 245 CLR 1
That analysis has since been adopted as the doctrine of the Court as regards so-called indirect inconsistency in the context of s 109 of the Constitution.[57] It has an obvious resonance with the principle in Morton as explained in Plaintiff M47/2012.
[57] see Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428 at [35]
That point assumes particular importance when one considers, as a question of construction, the statutory purpose of the provisions of the Migration Act upon which the applicant relies (s 501CA(3) and ss 494A-C).
As noted during the Minister’s oral submissions, the purpose of s 494B is that identified in Zhang v Minister for Immigration and Citizenship,[58] which is to “optimise the known choices available to the Minister to communicate documents to the person intended to be notified of their content”. The objective purpose is to allow the “Minister to avail of all of the obvious means provided by that person to the Minister that would facilitate that person’s receipt of a documentary communication”.[59]
[58] (2007) 161 FCR 419 at [29]
[59] Zhang at [15]
That does not suggest a legislative intention to deal exhaustively and comprehensively in s 494B (or s 494C) with the relevant subject matter. Indeed, it rather suggests the opposite, deliberately seeking to confer on the Minister a considerable degree of flexibility as to the method of delivery of the relevant document.
The same is said to be obviously true of the words “in the manner the Minister considers appropriate” which appear in both s 494A(1) and s 501CA(3), and which in both cases refer to the “method of delivery and request rather than the content”.[60] In each of those cases, the Parliament has, by design, refrained from exhaustively regulating the relevant subject matter (method of delivery). Again, the obvious object is to confer on the Minister a degree of flexibility as to the method of delivery.
[60] EFX17 [2021] HCA 9 at [25]
Importantly, the Full Federal Court in Zhang held that precisely the same object was sought to be pursued via regulation 2.55.[61] Indeed, that was hardly surprising for the very reason given by their Honours in Zhang in expressing doubt about a similar argument to that put by the applicant in the current case (ie that s 494A “overrides the regulation”[62]). Taking that to be a form of argument that the regulation was inconsistent with the Migration Act,[63] the Full Federal Court made particular note of “reg 2.55’s obvious provenance in s494B”.[64] The point being that inconsistency was inherently unlikely where:
(a)both provisions served the same object of conferring flexibility as to the method of delivery; and
(b)the putatively inconsistent provision largely (but not wholly) replicated the provisions of the Migration Act.
[61] see again at [29] and see also Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86 at [62], [69] (Jacobson J)
[62] see Zhang at [34]
[63] see Zhang at [35]
[64] Minister’s emphasis retained; see also [27], [28]
It is true that the Full Federal Court did not need to decide that argument but its considerable misgivings about that submission are said to have been well-founded.[65]
[65] see also Butt v Minister for Immigration and Border Protection [2014] FCA 1354 at [48] and [51] where Mortimer J understood the Full Federal Court in Zhang to have “found that ss 494A-494C did not ‘override’ reg 2.55”
The Minister submits that when those matters are brought to account, the asserted inconsistency between the regulation and the statutory scheme evaporates. It is true that regulation 2.55(3) specifies the ways in which a document referred to in regulation 2.55(1)(a) or (c) “must” be given. The Minister nevertheless remains free to choose any method that she or he considers “appropriate” from amongst those methods, which largely (albeit not entirely) overlap with those specified in s 494B.
The Minister contends that the regulation thus occupies a space where one can discern no legislative intention to deal exhaustively with the relevant subject matter. Further underscoring its compatibility with that scheme, it does so in a manner which takes as its model an element of that scheme (being s 494B).
It can also be noted that regulation 2.55 and s 494B have differing areas of operation.[66] The former is (more specifically) concerned with the giving of the documents specified in regulation 2.55(1)(a) or (c) to a person who holds or held a visa. The latter is a more general provision which applies to the giving of “a document” to “a person”. Given that those provisions have been held to be different aspects of the “same statutory scheme”,[67] they are readily construed in the harmonious fashion identified above, and no aspect of the scheme is rendered otiose by that construction. The fact that they are properly understood as component parts of the same scheme with those different areas of operation is said to be a further weighty consideration that strongly suggests that there was no legislative intention to deal exhaustively with the relevant subject matter by the enactment of ss 494A-C.
[66] see Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552 at [55]
[67] Sainju at [62], [69]
The Minister submits that the applicant’s reliance upon Stewart at [42] and the passage from the High Court’s reasons in EFX17 at [30] could not alter that analysis. The (undoubted) importance of the mechanism provided for by the Migration Act to make representations cannot transmogrify the text: in particular, it cannot convert a scheme characterised by flexibility and non-prescriptiveness into a rigid set of requirements evincing an intention to deal completely and thus exclusively with the particular subject matter.
The applicant further contends, in the alternative (that is, on the supposition that the regulation validly applies to the giving of documents as required under s 501CA(3)), that regulation 2.55 must be interpreted “consistently” with s 494B(4) and s 494C(4). It is not entirely clear what is meant by this. It is not in dispute that regulation 2.55 and s 494B and s 494C form part of the same statutory scheme and that any identical words used in the regulation and those provisions of the Migration Act ought be given the same meaning,[68] but the applicant points to no instance where that constructional approach might be applicable. In any event, for the reasons already given, there is said to be no reason for suggesting that regulation 2.55 is in any way inconsistent with ss 494B and 494C.
[68] Sainju at [62], [69] (Jacobson J)
Finally, in the Minister’s submission it can be noted that the High Court in EFX17 proceeded on the basis that regulation 2.55 did validly operate upon s 501CA (see at [14]). One cannot, of course, suggest that that is authority which stands in the path of the applicant’s arguments given that that the contrary proposition does not appear to be the subject of argument. But one can at least say that the Court was seemingly entirely untroubled by any such issue.
Resolution
It is not strictly necessary to deal with this question of the validity of the Regulations but, in the event that this case may proceed further, I place on record that I agree with and adopt, with respect, the applicant’s submissions on this question.
The principal issue is whether regulation 2.55 is inconsistent with s 501CA(3)(a) and ss 494A-494C of the Migration Act. It is not essential, to find inconsistency, to discern a legislative intention to deal with the subject matter “completely and thus exclusively”. In Morton, the High Court said that an “important consideration” was “the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned” (emphasis added).[69] The use of the words “consideration” and “degree” indicate that one need not discern an intention that the legislation “cover the field” in the manner that is applied when considering indirect inconsistency in the context of s 109 of the Constitution.
[69] at 410 [5]
The Minister relies on the remarks of Gummow J in Plaintiff M47/2012.[70] Gummow J was in dissent in that case on the issue of whether the relevant clause of the Regulations was invalid. The remarks cited by the Minister did not have the support of other members of the Court and cannot override what a unanimous High Court stated in Morton. None of the other judges in Plaintiff M47/2012 suggested that an intention to “cover the field” is necessary to invalidate a regulation,[71] and one, Hayne J, expressly held that such an intention is not necessary, stating at [174], after referring to Morton:
Thus, the notion of inconsistency embraced by the common form of regulation making power—to make regulations “not inconsistent with this Act”—is not sufficiently described by reference only to the metaphor of “covering the field” which has in the past been used in connection with s 109 of the Constitution. Rather, as was said in the passage quoted from Morton, the question is whether the regulation in question varies or departs from (in other words alters, impairs or detracts from) the provisions of the Act.
(Minister’s emphasis retained)
[70] at [134]
[71] See Plaintiff M47/2012 at [54] per French CJ; at [318]-[319] per Heydon J; at [382] per Crennan J; at [434] per Kiefel J; at [484] per Bell J
The scheme of the Migration Act is relevantly that:
(a)section 501CA(3)(a) expressly empowers the Minister to give notice in any way considered by the Minister to be “appropriate in the circumstances”;
(b)section 494A(1) further expressly empowers the Minister to give a document to a person by any method he or she considers to be appropriate, including those set out in s 494B; and
(c)section 494C provides for deemed receipt if, and only if, one of the methods used in s 494B has been used.
Regulation 2.55 “impairs or detracts from” the operation of the statutory scheme in two ways. First, regulation 2.55(3) provides that the Minister “must” give notice in one of the ways then set out, thereby detracting from the freedom given to the Minister under s 501CA(3) (and for that matter, s 494A(1)).
Secondly, regulation 2.55(7) provides for deemed receipt in the case of dispatch by way of pre-paid post, in a manner which, at least in the present case, departs from the scheme for deemed receipt in the case of a document sent by pre-paid post that is applied under s 494C(4).
The Minister submits that the purpose of s 494B identified in Zhang, to optimise the known choices available to the Minister to communicate documents to the person intended to be notified of their content, tells against a “legislative intention to deal exhaustively and comprehensively in s 494B (or s 494C) with the relevant subject matter”. There are two related difficulties with that submission: first, it conflates the purpose of s 494B and s 494C, and secondly, it does not identify with any precision the “relevant subject matter” said to be addressed by the legislation.
The purpose of s 494B may well be, as stated in Zhang, to optimise Ministerial choice in the communication of documents, with the qualification that the choices given to the Minister are limited to those set out in the relevant sub-sections. Section 494C, however, has a different or additional purpose. Its ostensible purpose is to promote certainty as to when documents communicated are received by the persons to whom they are sent. It does so in a manner which strikes a balance between, on the one hand, the need for certainty in administrative decision making, and on the other hand, the interests of a person to whom documents are given by the Minister, in circumstances where the timing of receipt can affect rights of review. The legislature chose to strike that balance, in the case of documents sent by way of pre-paid post, by applying the deeming only where a document has been given pursuant to s 494B(4), which requires (other than in the case of minors) the address to which the document is sent to be one “provided to the Minister by the recipient for the purposes of receiving documents”.
The relevant subject matter with which the legislature has dealt in detail is when a document sent by pre-paid post will be deemed to have been received. Regulation 2.55(7), read with regulation 2.55(3)(c), impairs or detracts from the manner in which the legislation has dealt with that subject matter, by extending the deeming to a case where the Minister has sent a document to an address which has not been provided to the Minister by the recipient for the purposes of receiving documents, provided it is the last residential, business or post box address “known to the Minister”. In that way, the regulation interferes with the balance struck by the legislature through ss 494C(4) and 494B(4) between administrative certainty and the interests of the recipient. It is easy to see how dispatch to an address that falls within regulation 2.55(3)(c) but not s 494B(4) might prejudice a recipient (an obvious, but not the only, example being that the last address known to the Minister might not be the recipient’s current address). The legislature has addressed this in ss 494B and 494C by applying a deeming only where dispatch by post (and for that matter, email and fax as well) has been to an address notified by the recipient to the Minister for the purposes of receiving documents.
The Minister submits that ss 494A(1) and 501CA(3) themselves indicate an intention not to regulate exhaustively the relevant subject matter. That submission is both misdirected and incorrect for the reasons set out above. The Minister also makes reference to the remarks of the Full Federal Court in Zhang at [29] that the same object is pursued by regulation 2.55 and s 494B. Those comments were directed to a submission made in Zhang that regulation 2.55 was more restrictive than s 494B. Here, the position is the reverse; the deeming in ss 494B(4) and 494C(4) operates in more limited circumstances than regulation 2.55(3)(c) and (7). As the applicant has already submitted, one way to resolve the inconsistency is to read regulation 2.55 as subject to ss 494B and 494C. Alternatively, regulation 2.55 is invalid to the extent that it departs from the statutory scheme.
The Minister also submits that regulation 2.55 and s 494B have “differing areas of operation” (a submission that does not sit easily with the Minister’s submission that the two pursue the same object); regulation 2.55 is restricted to the giving of certain documents to a person who holds or held a visa, while s 494B is a more general provision relating to the giving of a document to a person. The applicant accepts that regulation 2.55 is narrower in scope than s 494B in that sense, but that does not detract from the applicant’s argument. Through ss 494B(4) and 494C(4), the legislature has dealt in detail with a scheme for deemed receipt of documents sent by pre-paid post. Regulation 2.55 detracts from that scheme in the case of certain documents sent to a person who holds or held a visa. Sections 494B(4) and 494C(4) would in effect be rendered otiose at least in relation to notices sent under s 501CA(3)(a) if the Minister’s argument is accepted.
Further, the features of the statutory scheme referred to in Stewart at [42] and (arguably) EFX17 at [30] are relevant to the point made above, namely that regulation 2.55 impairs or detracts from the balance struck by the legislature in ss 494B and 494C between administrative certainty and the rights of persons receiving correspondence from the Minister. That balance, and the legislature’s choice in that regard, is all the more important in the case of a person receiving a notice under s 501CA(3)(a).
The Minister has sought to address the applicant’s alternative submission, that if regulation 2.55 is not invalid, it must be construed consistently with ss 494B and 494C. The Minister submits that the applicant has pointed to “no instance where that constructional approach might be applicable”. The applicant’s submission in this respect goes to the proper construction of the words “post box address” in regulation 2.55(3)(c). In Zhang at [30], the Full Federal Court stated that a “reasonable and appropriate construction” of those words is that they are:
simply a loose vernacular version of a type of postal address, not being a residential or a business one, to which it is known to be appropriate to correspond with the intended recipient, i.e. it is an address for correspondence such as the appellant supplied to the Minister and which was used by the Minister.
(Minister’s emphasis retained)
As I have already found, if that is the construction placed on “post box address”, then there was no deemed receipt in the present case as the applicant did not supply to the Minister the PO Box address for Parklea Correctional Centre to which the notice was addressed.
No issue as to inconsistency between regulation 2.55 and ss 494B and 494C arose in EFX17.
CONCLUSION
The applicant has succeeded in establishing that the purported cancellation decision is affected by jurisdictional error and is, in consequence, a nullity. He should receive the relief he seeks. I will make orders accordingly.
I will hear the parties as to costs.
I certify that the preceding one hundred and twenty-five (125) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 4 June 2021
29
0