Eve21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs - [2022] FedCFamC2G 729

Federal Circuit and Family Court of Australia
(DIVISION 2)
EVE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 729

File number(s): SYG 2406 of 2021

Judgment of: JUDGE MANOUSARIDIS

Date of judgment: 2 September 2022

Catchwords: MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision affirming a decision made by a delegate of the first respondent (Minister) purportedly pursuant to s 109(1) of the Act to cancel the applicant’s Protection visa – whether reg 2.55 of the Migration Regulations 1994 (Cth) (Regulations) purportedly pursuant to which the delegate notified the applicant of the decision to cancel the Protection visa was invalid as being inconsistent with s 494A, s 494B, and s 494C of the Act – reg 2.55 of the Regulations inconsistent and therefore invalid – whether the method by which the delegate purported to notify the applicant of the decision to cancel the Protection visa was a method provided for by s 494B of the Act – method of notification was not a method provided for by s 494B of the Act – whether, given the applicant was not notified of the decision to cancel the Protection visa the Tribunal had jurisdiction to review the cancellation decision – Tribunal had jurisdiction to do so – whether the delegate gave to the applicant the notice the delegate issued pursuant to s 107(1) of the Act by a method provided for by s 494B of the Act – delegate did not give such notice by a method provided for by s 494B of the Act – whether the delegate’s purported cancellation of the Protection visa pursuant to s 109(1) of the Act was therefore of no effect – purported cancellation of no effect – relief granted.

Legislation:
Acts Interpretation Act 1901 (Cth) ss 15A, 46(1)(c)

Legislative Instruments Act 2003 (Cth) s 13(2)

Migration Act 1958 (Cth) ss 5AA, 66, 67, 101, 102, 103, 104, 105, 106, 107, 108, 109, 111, 112, 116, 127, 138, 411(1)(d), 412, 476, 478, 494A, 494B, 494C, 501CA(3), 501CA(4), 504

Migration Regulations 1994 (Cth) regs 2.16, 2.20A(2)(a), 2.42, 2.44, 2.52(2)(b), 2.55, 4.31

Cases cited:
BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63

Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 63

Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463

EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436

Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945

McEldowney v Forder [1971] AC 632

Minister for Immigration and Border Protection v EFX17 [2021] HCA 9

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46

Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402

Parata v Minister For Home Affairs & Anor [2020] FCCA 1582

Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1

Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86

Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27

Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73

Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386

Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151

Division: General

Number of paragraphs: 106

Date of last submission/s: 3 June 2022

Date of hearing: 6 and 18 May 2022

Place: Sydney

Counsel for the Applicant: Ms K Heath, by video

Solicitor for the Applicant: Legal Aid NSW

Counsel for the First Respondent: Mr B Kaplan, by video

Solicitor for the First Respondent: Sparke Helmore Lawyers
ORDERS

SYG 2406 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
EVE21

Applicant

AND:
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

order made by:

JUDGE MANOUSARIDIS

DATE OF ORDER:

2 september 2022

THE COURT DECLARES THAT:
1.Regulation 2.55 of the Migration Regulations 1994 (Cth) is invalid on the ground that it is inconsistent with s 494A, s 494B, and s 494C of the Migration Act 1958 (Cth) (Act).

THE COURT ORDERS THAT:
2.The decision of the second respondent (Tribunal) made on 30 November 2021 affirming the decision of a delegate of the first respondent made on 27 June 2017 purportedly pursuant to s 109(1) of the Act is quashed.
3.The Tribunal review the delegate’s decision referred to in order 2 according to law.
4.The first respondent pay the applicant’s costs as agreed or as taxed.

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
Introduction

Two principal questions arise on this application for remedies under s 476 of the Migration Act 1958 (Cth) (Act). The first is whether the second respondent (Tribunal) had jurisdiction to review a decision (Cancellation Decision) purportedly made by a delegate of the first respondent (Minister) on 27 June 2017 under s 109(1) of the Act to cancel a Protection (Class XA Subclass 866) visa (Protection visa) that had been granted to the applicant in 2011. The second question, which arises if the first is answered in the affirmative, is whether a notice the delegate issued on 17 March 2017 purportedly under s 107(1) of the Act (107 Notice) had been “given” to the applicant. The determination of both questions turns on whether the methods by which the delegate attempted to bring the 107 Notice, and later the Cancellation Decision, to the notice of the applicant were methods permitted under the Act or under the Migration Regulations 1994 (Cth) (Regulations).
The delegate sought to bring the 107 Notice and the Cancellation Decision to the applicant’s notice by posting them to the post office box maintained by the respective correctional facilities at which the applicant had been in detention when the 107 Notice and the Cancellation Decision were posted. The applicant submits that in neither case did s 494B of the Act provide for such method; and to the extent reg 2.55 of the Regulations provided for such method, that regulation is inconsistent with s 494A, s 494B, and s 494C of the Act and, for that reason, it is void as being outside the scope of the regulation making power conferred by s 504 of the Act. The Minister, on the other hand, submits that reg 2.55 of the Regulations is not invalid; and the methods by which the delegate brought the 107 Notice and the Cancellation Decision to the notice of the applicant answered one of the methods provided for by reg 2.55. Alternatively, the Minister submits that the methods the delegate used answered one of the methods provided for by s 494B of the Act.
The determination of the validity of reg 2.55 of the Regulations is relevant to the two questions I have identified as follows. If, as the applicant submits, reg 2.55 of the Regulations is invalid, the means by which the delegate attempted to notify the applicant of the Cancellation Decision did not constitute a “notification of” the Cancellation Decision for the purposes of s 412(1)(b) of the Act, which would mean that the 28 day period provided for by s 412(1)(b) of the Act for the applicant to apply to the Tribunal for a review of the Cancellation Decision will not have commenced to run, and the applicant will therefore have applied to the Tribunal for review of the Cancellation Decision within the time provided for by s 412(1)(b) of the Act. Further, if reg 2.55 of the Regulations is invalid, an essential precondition to the exercise of the power under s 109(1) of the Act to cancel the applicant’s Protection visa, namely, the Minister’s giving a notice as required by s 107(1) of the Act, will not have been satisfied; and the delegate’s purported cancellation of the applicant’s Protection visa would have no legal effect.
It would be convenient if I first identify the relevant statutory provisions by reference to which the two questions are to be determined. I will then set out the facts out of which the questions I am required to decide have arisen.
relevant provisions
I begin with s 109(1) of the Act, which provides that the Minister may cancel a visa. The Minister may cancel a visa under s 109(1), however, only if a number of conditions are satisfied, one of which is that the Minister “give” to the visa holder a notice pursuant to s 107(1) of the Act (107 notice).
Subsection 107(1) of the Act
The Minister may give a 107 notice only if he or she considers the visa holder did not comply with s 101, s 102, s 103, s 104, s 105, or s 107(2) of the Act. Further, the 107 notice must contain the information specified by that subsection: the 107 notice must “giv[e] particulars of the possible non-compliance”; and it must contain the following:
(a)A statement that “within a period stated in the notice as mentioned in subsection (1A)” the visa holder may give a written response to the Minister; and the statement must describe the matters the visa holder should address in his or her response. These differ according to whether the visa holder disputes or does not dispute there has been non-compliance. If the visa holder disputes there has been non-compliance, the response should show there was compliance and, in the case the Minister decides under s 108 of the Act that there was non-compliance, show cause why the visa should not be cancelled; and if the visa holder does not dispute there was non-compliance, the visa holder should show cause why the visa should not be cancelled.
(b)A statement that the Minister will consider cancelling the visa at any one of three particular times, those times depending on whether the visa holder, within the period mentioned in s 107(1A) of the Act, provides a written response, or notifies the Minister the visa holder will not provide a written response. The 107 notice must state that:
(i)if, within the period mentioned in s 107(1A) of the Act, the visa holder notifies the Minister the visa holder does not intend to give a written response, or the visa holder gives a written response, the Minister will consider cancelling the visa when such notice or written response is given; and
(ii)if, within the time mentioned in s 107(1A), the visa holder does not give the Minister a notice or written response, the Minister will consider cancelling the visa at the end of the period mentioned in s 107(1A) of the Act.
(c)A statement setting out the effect of s 108, s 109, s 111, and s 112 of the Act.
(d)A statement that the visa holder’s obligations under s 104 or s 105 of the Act are not affected by the issuing of a 107 notice.
(e)A statement requiring the visa holder to tell the Minister the address at which the visa holder is living, and if the visa holder changes that address before the Minister notifies the visa holder of the Minister’s decision on whether there was non-compliance by the visa holder, to tell the Minister the changed address.
“Within a [14 day] period stated in the notice”
Subsection 107(1A) of the Act provides that, where the visa holder does not hold a temporary visa, the “period to be stated in the” 107 notice must be 14 days. When “14 days” is read into s 107(1)(a) of the Act, that paragraph must be read as providing that a 107 notice must state that the visa holder may respond in the manner provided by s 107(1) “within 14 days”. Subsection 107(1) of the Act, however, omits to state explicitly two things. The first is the day from which the period is to run. It is clear enough, though, that s 107(1) of the Act contemplates that the commencement day must be the day on which the Minister “gives” the 107 notice; and this makes it necessary to look to other provisions of the Act and potentially of the Regulations to ascertain the meaning of “give” in s 107(1). The second thing s 107(1) of the Act omits is the words or the effect of the words a 107 notice must contain to convey to the visa holder that he or she must provide a written response to the 107 notice within 14 days. What a 107 notice must state in that regard is suggested by what the High Court in Minister for Immigration and Border Protection v EFX17 said must be stated in an invitation given under s 501CA(3)(b) of the Act .[1]
[1] Minister for Immigration and Border Protection v EFX17 [2021] HCA 9, at [42]
Meaning of “give”
The word “give”, when used in relation to a corporeal object such as paper, is capable of carrying a number of meanings; but at its core “give” is predicated on their being at least two persons - persons A and B - and an object over which one of the persons - person A - has control. In that context “give” denotes the act by which person A hands over to person B, and person B accepts, control of the object; and “receive” denotes the act by which person B accepts control of the object. In this core case the giving and receiving of an object is a consensual act; it occurs at the same time and in the one place; and it involves the one corporeal object or the one set of such objects.
This core case of “give”, however, is not what “give” in s 107(1) of the Act denotes. The thing s 107(1) of the Act requires the Minister to “give” is information that conveys the meanings specified by that subsection (107 information); and the acts that “give” is intended to denote when used in relation to a 107 notice are the various ways by which the 107 information may be communicated or notified to the visa holder. This may occur by the Minister recording the 107 information on paper and arranging for the paper to be handed over to the visa holder, or to be left at a particular place that is accessible to the visa holder. But in the great majority of cases the 107 information would be an electronic document stored in a computer over which the Minister has control; and the Minister’s giving the 107 information would involve the Minister’s causing to access that information from the computer, and to convey it to an electronic device to which the visa holder has access.
Thus “give”, when used in relation to a document the Act requires the Minister to give, means “communicate” or, more relevantly, “notify” information that is recorded in the document, paper or electronic device. This construction is supported by s 494A and s 494B of the Act, and by reg 2.55 of the Regulations, which identify the different ways by which the Minister may “give” a document. These range from the delivery of a paper document recording information, to the electronic transmission of information stored in computers. Further, the Act and Regulations assume that “give” and “notify” have substantially the same meaning. That is apparent from sections of the Act that provide that the Minister’s decision is made when it is recorded in writing, and which require the Minister to notify a specified person of the decision. Given that a decision is made when it is recorded in a document, the Act and Regulations assume that the Minister will notify a person of the decision by the Minister giving the person the document that records the decision.[2]
[2] See, for example, s 66 and s 67 of the Act, and reg 2.16 of the Regulations.
Provisions dealing with the giving of a document
There are a number of provisions in the Act that deal with the Minister giving documents. First, there is s 494A(1) of the Act, which provides:
If:
(a)a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i)by one of the methods specified in section 494B; or
(ii) by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods mentioned in subparagraph (b)(i) or (ii) of this section).
It is evident that s 107(1) of the Act permits the Minister to “give” a document, namely, a 107 notice; and it is equally evident that s 107(1) does not state that a 107 notice must be given by one of the methods specified in s 494B of the Act (494B methods), or by a method prescribed for the purposes of giving documents to a person in immigration detention. That means the Minister may “give” a 107 notice by any one of the 494B methods or by any other method the Minister considers appropriate.
The Minister’s discretion, however, to use a method the Minister considers appropriate to give a document other than one of the 494B methods is not at large. Subsection 494A(1) of the Act assumes that a provision of the Act or of the Regulations may require the Minister to use one of the 494B methods.[3] Thus, s 494A(1) assumes that it is within the scope of s 504 of the Act to make a regulation requiring the Minister to give a document by use of one of the 494B methods. But s 494A of the Act contemplates that the provision which may require the Minister to use a 494B method must be part of the provision that permits or requires the Minister to give the document in question.
[3] There are regulations that require the Minister to give a document by one of the 494B methods: see, for example, reg 2.16(2D), reg 2.16(3), and reg 2.20A(2)(a).
Next, there is s 494B of the Act, which describes the 494B methods. Subsection 494B(1) also states the purposes for which the 494B methods are available to be used: they are available for:
the purposes of provisions of this Act or the regulations that:
(a) require or permit the Minister to give a document to a person (the recipient); and
(b) state that the Minister must do so by one of the methods specified in this section . . .
Subsection 494B(1) of the Act reinforces s 494A(1): the 494B methods are mandatory only where a provision of the Act or a provision of the Regulations requires or permits the Minister to give a document by any one of the 494B methods.
The method that is relevant to the questions in the proceeding before me is that provided for by s 494B(4) of the Act:
Another method consists of the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b) by prepaid post or by other prepaid means; and
(c) to:
(i) the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii) the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents; or
(iii) if the recipient is a minor—the last address for a carer of the minor that is known by the Minister.
Next, it is necessary to consider s 494C of the Act. Subsection 494C(1) provides that s 494C “applies if the Minister gives a document to a person by one of the methods specified in section 494B (including in a case covered by section 494A)”. This means that s 494C of the Act applies both in cases where the Minister gives a document using a 494B method because a provision of the Act or of the Regulations requires the Minister to use such method; and where the Minister decides to use a 494B method even though there is no provision of the Act or of the Regulations that requires the Minister to do so.

The balance of s 494C of the Act prescribes the times at which the person to whom the Minister has given a document by use of any of the 494B methods is “taken to have received the document”. Subsection 494C(4) of the Act is relevant:
If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document 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.
Also relevant to one submission the Minister makes is s 494C(7) of the Act, which provides:
If:
(a) the Minister purports to give a document to a person in accordance with a method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.
Section 494C of the Act only applies to documents the Minister has given, or purported to give, by one of the 494B methods. Section 494C does not apply where the Minister has given, or has purported to give, documents by a method that is not a 494B method if the Minister was not required to give the document by a 494B method and the Minister considered it appropriate to give the document by a method that is not a 494B method.
Finally, I refer to reg 2.55 of the Regulations, which relevantly provides:
Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1)This regulation applies to:
(a) the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act;
. . . .
(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:
. . . .
(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;
. . . .
(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.
. . . .
Description of period by which visa holder may provide written response
The words a 107 notice must state to convey to a visa holder (other than a temporary visa holder) that he or she must provide a written response within 14 days should be modelled on the words or words to the effect the High Court in Minister for Immigration and Border Protection v EFX17 held should be used in an invitation the Minister is required to give under s 501CA(3)(b) of the Act. That paragraph requires the Minister to provide an invitation to a person whose visa has been cancelled “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”. The High Court said:[4]
[A]n invitation to make representations “within the period ... ascertained in accordance with the regulations” must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the invitation such as “28 days from the day that you are handed this document”.
[4] Minister for Immigration and Border Protection v EFX17 [2021] HCA 9, at [42]
Thus, where a 107 notice is given in relation to a visa that is not a temporary visa, the invitation to provide a written response within 14 days must crystallise the period either expressly or by reference to correct objective facts from which the period can be ascertained on the face of the 107 notice.
Other preconditions for cancellation of visa under s 109
Although not relevant to the questions I must consider, I include here the other conditions that must be satisfied before the Minister may exercise the power under s 109 of the Act to cancel a visa. These are provided for by s 108 and s 109 of the Act. Section 108 requires the Minister to consider any response to the 107 notice given by a visa holder in the way required by s 107(1)(b) of the Act, and decide whether there was non-compliance by the visa holder in the way described in the 107 notice. Having decided there has been non-compliance by the visa holder, s 109 of the Act requires the Minister to consider any response to the 107 notice about the non-compliance in a way required by s 107(1)(b) and also to consider any “prescribed circumstances”.
Provisions relating to making and notifying decision to cancel
Under s 138(1) of the Act a decision by the Minister to cancel a visa is “taken to be made by the Minister causing a record to be made of the decision”. Subsection 138(2) of the Act provides that the record of the decision must state the day and time of its making; and s 138(3) provides that the decision is taken to have been made on the day and at the time the record is made.
Once a decision to cancel a visa under s 109 of the Act has been made, reg 2.42(1) of the Regulations provides that “the Minister must notify the former holder of the visa in writing that the visa has been cancelled”, and reg 2.42(2) provides that the notification must set out the ground for the cancellation. Given that s 138(1) of the Act provides that a decision to cancel a visa is made when a record of the decision is made, the requirement that the Minister notify the former visa holder of the decision at the very least implies that the Minister may notify the former visa holder of the decision by giving the former visa holder the document that records the Minister’s decision. Further, given that reg 2.42 of the Regulations does not require the Minister to use a 494B method, the Minister must notify the former visa holder of the Minister’s decision to cancel the visa by giving the document recording the decision to the former visa holder by any one of the 494B methods, or by any other method the Minister considers appropriate.
Provisions relevant to Tribunal’s jurisdiction to review Cancellation Decision
A decision under s 109 of the Act to cancel a Protection visa is a “Part 7-reviewable decision” under s 411(1)(d) of the Act. That means that the holder of the Protection visa that has been cancelled can make an application to the Tribunal under s 412 of the Act for review of the decision to cancel the Protection visa. Such application, however, may only be made in the circumstances provided for by s 412 of the Act itself. That includes the circumstances specified in s 412(1)(b) of the Act, namely, that the application for review must “be given to the Tribunal within the period prescribed, being a period ending not later than 28 days after the notification of the decision”.
A period has been prescribed by reg 4.31 of the Regulations. In the case of an applicant who is not in immigration detention on the day the applicant is “notified of a Part 7-reviewable decision”, reg 4.31(2) provides that “the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision”. Where the decision is one made under s 109 of the Act to cancel a visa which, under s 138 of the Act, is made when the decision is recorded in a document, a person whose visa has been cancelled by a decision made under s 109 will be notified of that decision if the Minister gives to the person the document recording the decision.
It has been held that the notification of a Part 7-reviewable decision, as contemplated by s 412 of the Act, “must not be carried out in a manner which frustrates or negates the entitlement of the person notified to lodge an application for review of the decision within 28-days of the notification”.[5] A notification will have that effect if it misstates or fails to state accurately the time within which the person notified of the decision may apply for review of the decision. The judgment of Keifel J (as her Honour then was) in Dranichnikov v Minister for Immigration & Multicultural Affairs illustrates that point.[6]
[5] Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386, at page 396
[6] Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 63
In that case the Refugee Review Tribunal (RRT) incorrectly informed the applicant that if he wished to appeal to the Federal Court of Australia he had to apply within 35 days after the date of that letter. That was incorrect because the right to apply to the Federal Court of Australia as provided for by s 478 of the Act (as it then stood) referred to time running from notification. Kiefel J held there was no notification because the effect of the advice the RRT gave “was, potentially, to mislead the applicant as to the time available for applying for review of the [RRT] decision, thereby frustrating the intent of s.478”.[7] Her Honour relied on the following principles:[8]
Representations or advices as to time limits, or an applicant's right to apply, may however, affect the operation of s.478, or more particularly, in answer to the question whether an applicant has been "notified of the decision" for the purposes of s.478. The purpose of the section is to impose a limit upon the time for application by having time run from 28 days of notification. In Wang v Minister for Immigration and Multicultural Affairs (393-395), Merkel J had regard to the purpose of the section and concluded that, whilst there was no obligation on the Tribunal to notify of rights to review, or time limits with respect to them, a notification of the decision by the Tribunal, which is comprehended by the Act for the purposes of s.478, which includes and is accompanied by an untrue statement about review rights, substantially frustrates or negates the function of notification (393). An alternative construction of s.478 in its statutory context, and having regard to its role, is that a notification, for the purposes of that section, must be a notification of the decision which does not frustrate or negate the entitlement of the person notified to apply to the Court (394).
[7] Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 63, at [30]
[8] Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 63, at [29]
I now turn to the circumstances out of which the questions I am required to decide arise.
background
The applicant is granted a Protection visa
The applicant is a national of Iran. He arrived in Australia by boat in early 2011 as an unauthorised maritime arrival within the meaning of s 5AA of the Act. Later in 2011 the applicant was granted a Protection visa on the ground that he fears persecution because he is a homosexual.
Applicant travels to Iran
In 2014 the applicant travelled twice to Iran via Thailand to see his mother who had been diagnosed with cancer. The applicant travelled on an Iranian passport. He remained in Iran for about two months on each visit; and on his return from Iran the applicant stayed with friends in Thailand for between one to two weeks. The applicant did not record in the passenger cards he completed for the purpose of his trips that he intended to travel to Iran; he instead recorded that Thailand would be the country in which he would spend, and did spend, the most time abroad. The applicant accepts that by recording this information in the passenger cards, he failed to comply with s 102(b) of the Act.[9]
[9] Which provides: “A non-citizen must fill in his or her passenger card in such a way that . . . no incorrect answers are given.”
Applicant convicted and sentenced to prison for drug offences
The applicant lived in the Australian community from late December 2014 until the middle of 2016 when he was arrested on charges relating to the large quantity of commercial supply of illegal drugs. The applicant was later convicted and sentenced to 8 years and 3 months imprisonment, with a non-parole period of 5 years and 2 months.
On 28 October 2016 the Department of Immigration and Border Protection (as the Department for Home Affairs was then known) (Department) posted to the applicant at an address in Mount Druitt a purported notice under s 107(1) of the Act (October 2016 107 Notice).[10] On 12 January 2017 the Department posted to the applicant at an address in Rhodes a further purported notice under s 107(1) of the Act (January 2017 107 Notice).[11] This notice was also sent to two email addresses.[12] There is no evidence the applicant provided a response to either of these notices.
[10] CB69
[11] CB71
[12] CB70
107 Notice
On 17 March 2017 a delegate of the Minister purported to issue a notice under s 107(1) of the Act (this being the “107 Notice” I identified at the beginning of these reasons).[13] At that time the applicant was held at the Metropolitan Remand and Reception Centre at Silverwater, New South Wales. The letter was sent by registered post to (Silverwater Facility post box address):
[Name of applicant]
MIN . . . .
Metropolitan Remand & Reception Centre
Private Bag 144
SILVERWATER NSW 1811
[13] CB81
In the 107 Notice the delegate stated he considered the applicant did not comply with s 101(b)[14] and s 102 of the Act and, if that were correct, the applicant’s Protection visa may be cancelled under s 109 of the Act. The 107 Notice identified information the applicant had provided in support of his application for a Protection visa, and information the applicant recorded in passenger cards the applicant had completed; and, for the reasons stated, the 107 Notice concluded the applicant had provided incorrect information. The 107 Notice further stated that before a decision could be taken to cancel the applicant’s Protection visa, the applicant had an opportunity to “comment on the possible non-compliance and to give a written response why [the Protection visa] should not be cancelled”.
[14] Which provides: “A non-citizen must fill in or complete his or her application form in such a way that . . . no incorrect answers are given or provided.”
The 107 Notice informed the applicant of his right to comment as follows:[15]
[15] CB87-88
What you can do
Before a decision can be taken on whether to cancel your visa, the Migration Act gives you the opportunity to comment on the possible non-compliance and to give a written response why your visa should not be cancelled. Your response should provide reasons:
•why you think you have complied, or why you have not complied, with section 101; and
•why you think your visa should not be cancelled (you should provide reasons why you think your visa should not be cancelled, even if you think you have complied, as the delegate may disagree with you); and
•provide any supporting evidence.
You must provide your response in writing within 14 calendar days after you are taken to have received this letter. Where the last day falls on a Saturday, Sunday or public holiday the date is extended to the next working day.
As this letter was sent by mail from a place in Australia to an address in Australia, you are taken to have received this letter seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the place to where this letter was posted.
Note that if you do not respond within the above time frame, a decision on whether to cancel your visa will be made using information already held by the Department. If you do not intend to provide a written response within the period specified above, please advise this office in writing to the address below or by phoning me on (02) 8666 5654. The issue of cancellation will then be considered.
Please send your written response by email to: [email protected] or by post to the following address:
Department of Immigration and Border Protection
Visa Cancellation Unit
GPO Box 9984
SYDNEY NSW 2001
The delegate received no response to the 107 Notice. In the meantime, the applicant was transferred to Parklea Correctional Centre. The delegate made enquiries of the Parklea Correctional Centre whether the applicant intended to respond to the 107 Notice, but he was unable to obtain any information about that.[16]
[16] CB92
On or before 26 May 2017 the delegate sent the following email to the Manager of Security, Long Bay Correctional Complex (Long Bay Facility).[17]
DIBP have been attempting to engage with this inmate for visa cancellation purposes. A Notice of Intention to Consider Cancellation was posted to him at Silverwater on 17/03/2017, however we did not receive a response from him.
He was then transferred to Parklea, however we were unable to ascertain from Parklea whether he was intending to respond to the notice. He is now located at Long Bay Hospital, 12 Wing.
We are unable to proceed with cancellation action until we have received a response from the inmate. To this end, can you please arrange for the inmate to provide a response on the attached document and then email or fax back his response to me.
If the inmate advises that he never received the Notice of Intention to Consider Cancellation on 17/03/2017, please let me know and I will arrange for another one to be sent. That said, if you are aware that he has the document in his possession, then we will consider it as being successfully delivered. Either way, can you please advise.
Thank you for your assistance,
. . . .
Visa Cancellation Officer
DIBP
[17] CB92
By email sent at 1:25 pm on 26 May 2017 to the delegate, the Manager of Security at the Long Bay Facility attached a copy of the delegate’s email containing two items of handwriting. The first are the words “Received Inmate Sign”. It is not in dispute that the applicant’s signature appears next to those words. The second item of handwriting is the following:
Inmate did receive the package in March 2017, but claims to have left it at Silverwater. Inmate requests a new package, if possible.
Under these words there is printed the name and position of the Manager of Security at the Long Bay Facility; and next to this appears a signature which I infer is that of the Manager of Security.
On 29 May 2017 the delegate acknowledged receipt of the signed email as follows:[18]
Thanks for the response and confirming that the inmate did in fact receive the document. We are not obliged to give him an extension, but given that you have him there and he is now engaging in the process, I’ve attached a copy of the original document to this email. His response is now well overdue, and so if he wants us to consider what he has to say he’ll need to respond by close of business this Friday.
Thanks again for your help.
[18] CB96
On 7 June 2017 the delegate sent an email to the Manager of Security at the Long Bay Facility asking whether “this inmate decided to respond to the notice we sent him”. The Manager of Security replied by email sent on 7 June 2017 stating he was not sure whether “this inmate” had decided to respond to the 107 Notice, “but he was very well aware of his obligations”. The Manager of Security said he “can check tomorrow”.

It is open to infer, and I find, that the “copy of the original document” the delegate attached to his email of 29 May 2017 is a copy of the 107 Notice.
Cancellation of Protection visa
On 27 June 2017 the delegate decided to cancel the applicant’s Protection visa under s 109 of the Act on the ground that he had provided incorrect information in his protection visa application and passenger cards; and the delegate purported to send a notice of cancellation (Cancellation Notice) on that day which attached a document titled “Record of Decision of Whether to Cancel Under section 109 [of] the Migration Act 1958” (this being the “Cancellation Decision” I identified at the beginning of these reasons). The Cancellation Notice and Cancellation Decision were sent by registered post to the post office box maintained by the Long Bay Facility. The Cancellation Notice informed the applicant that the Cancellation Decision can be reviewed by the Tribunal.[19]
You may make an application for merits review of this cancellation decision with the Administrative Appeals Tribunal (AAT).
An application for merits review of this decision must be given to the AAT within the prescribed timeframe.
The prescribed timeframe is 28 calendar days, commencing on the day you are taken to have received this letter.
As this letter was sent by mail from a place in Australia to an address in Australia, you are taken to have received this letter seven (7) working days after the date of the letter. A working day does not include weekends or public holidays in the place to where this letter was posted.
[19] CB99
Applicant applies to Tribunal for review of Cancellation Decision
On 10 September 2021 the applicant applied to the Tribunal for review of the Cancellation Decision. In response to a letter dated 8 October 2021 inviting the applicant to appear before the Tribunal to give evidence and present arguments,[20] the applicant, by his lawyer, provided the Tribunal with a number of documents.[21] These included a statement made by the applicant.[22]
[20] CB136
[21] CB150
[22] CB157
Applicant’s statement
The applicant stated he arrived in Australia in 2011 seeking protection; in early 2014 the applicant’s mother was diagnosed with cancer and because he thought she was going to die the applicant decided to take the risk to travel back to Iran to see her; and when in Iran the applicant spent most of his time with his mother. After it seemed the applicant’s mother was recovering, the applicant returned to Australia. The applicant, however, decided to return to Iran again after the applicant’s mother’s cancer had returned. While in Iran the applicant visited friends, but he did not date any men. The applicant knew he was not meant to travel to Iran on his Protection visa; and he accepted that he had written on his passenger cards that he was going to spend time in Thailand. The applicant feels bad for having given untrue information; he just wanted to see his mother.
The applicant further stated that he was arrested in 2016 and has been in prison or detention since that time. The applicant was convicted of a drug offence, and sentenced to imprisonment for 8 years and 3 months with earliest release at 5 years and 2 months. The applicant’s Protection visa was cancelled while he was serving his sentence. He could not read very well then; and before he went to prison his English was very bad. The applicant spoke Farsi with his friends. The applicant only learned to speak English while in prison. The applicant asked the officer who gave him “the letter” (by which I infer the applicant intended to mean the 107 Notice) what it was about. After the officer told the applicant the letter was about the cancellation of the Protection visa, the applicant ripped up the letter and flushed it because he did not want any other person in the prison to know that he was a homosexual because he feared he would be bashed. After the applicant was transferred to the Long Bay Facility, he asked for another copy of the letter “and signed for the request”. The applicant does not remember receiving “the letter”.
The applicant tried to obtain legal aid in around the end of 2018, but his application was rejected. The welfare officer informed the applicant that he would have to wait until he finished his sentence and went into immigration detention, and then he could get an immigration lawyer. The applicant was released on parole in August 2021, and has been detained in immigration detention ever since.
The applicant also referred to matters relevant to the claims for protection he had made based on his being a homosexual. In addition, however, the applicant referred to additional facts that have given rise to a claim for protection. Those additional facts relate to the applicant having informed the Australian Federal Police of the information the applicant’s cellmate had conveyed to the applicant. The applicant was placed in protective custody. In around May 2021 the applicant’s family in Iran were threatened. The applicant’s family told him there were men going around the area the applicant had grown up in asking for the applicant. The applicant believes that associates of the persons against whom the applicant informed have sent people to the applicant’s family in Iran to scare the applicant out of giving evidence. The applicant’s mother begged the applicant not to return to Iran. The applicant expects that if he returns to Iran he will be killed.
Submissions
The applicant’s lawyers also provided written submissions, in which the following contentions were made:[23]
(a)The Tribunal had jurisdiction to consider the application for review because the purported notification of the Cancellation Decision was ineffective: it did not specify whether the Cancellation Decision was reviewable under Part 5 or Part 7 of the Act. That meant the prescribed time for applying to the Tribunal had not commenced to run.
(b)The 107 Notice did not comply with s 107 of the Act because it did not correctly state how the time frame for a response was to be calculated; and that is so because the Silverwater Facility post box address to which the 107 Notice was posted is not an address the applicant “provided to the Minister . . . for the purposes of receiving documents” within the meaning of s 494B(4)(c)(i) of the Act.
(c)There was no non-compliance with s 101(b) of the Act because the applicant’s claims for protection based on his sexuality are not inconsistent with the reasons he decided to visit Iran.
(d)The discretion to cancel should not be exercised having regard to the prescribed mandatory considerations, and the legal consequences.
[23] CB191
tribunal’s reasons
The Tribunal considered it had jurisdiction to review the Cancellation Decision because of this Court’s decision in Parata v Minister For Home Affairs & Anor.[24] That is apparent from the following entry in a case note made by an officer of the Tribunal on 21 September 2021.[25]
PARATA ASSESSMENT
Affected by Parata v MHA [2020] FCCA 1582. Type of notification used by the department under s 109 is invalid because it does not convey which part of the Act provided for the review of the decision. Prescribed time limit for applying under s. 127(2)(b) for review has not started to run. No further jurisdiction issues. For member consideration.
[24] Parata v Minister For Home Affairs & Anor [2020] FCCA 1582. The Full Federal Court dismissed an appeal from the orders made by this Court - Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
[25] CB284
As to the substantive aspects of the applicant’s review of the Cancellation Decision, the Tribunal found that:
(a)Section 107 of the Act does not require that “the notification process outlined in s 494B(4) must be followed” because reg 2.55 of the Regulations “is what covers the giving of documents relating to the proposed cancellation of visas and this simply requires the notification to be given to the last address (residential, email, fax, post box address) known to the Minister”.[26]
(b)The “regulation was followed”. The Tribunal relied on the October 2016 107 Notice; the January 2017 107 Notice; and the 107 Notice itself which the Tribunal records the applicant received but claimed he had torn it up and flushed it down the toilet because he was fearful of keeping the letter in case people found out about his homosexuality.[27]
(c)The applicant failed to comply with s 102(b) of the Act.
(d)The applicant failed to comply with s 101(b) of the Act because the Tribunal found the applicant fabricated the claim that he was a homosexual.
(e)The Protection visa should be cancelled.
[26] CB262, [13]
[27] CB263, [14]
tRIBUNAL’S JUrisdiction
The applicant contends the Tribunal made a jurisdictional error on any one or more of the three grounds stated in the amended application filed on 4 May 2022. The Minister also contends the Tribunal made a jurisdictional error, but one that is different from those the applicant contends the Tribunal made. The jurisdictional error the Minister contends the Tribunal made was to proceed on the incorrect basis that it had jurisdiction to review the Cancellation Decision. If the Minister is correct in his contention, the applicant’s application for remedies under s 476 of the Act must be dismissed. If, on the other hand, the Tribunal did have jurisdiction, and the applicant succeeds in establishing that the Tribunal made one or more of the jurisdictional errors the applicant contends it made, the question whether the applicant’s Protection visa should be cancelled must be remitted to the Tribunal for reconsideration.
Parties’ submissions
The applicant does not submit the Tribunal had jurisdiction to review the Cancellation Decision for the reasons the Tribunal considered it had jurisdiction. As I noted earlier, the Tribunal considered it had jurisdiction because of this Court’s decision in Parata. That decision, however, related to a notice that was purportedly issued under s 127 of the Act which, in turn, related to a decision to cancel a visa for one or more of the grounds stated in s 116 of the Act. Section 127 does not apply to a decision to cancel a visa under s 109 of the Act.
The elements of the applicant’s contention that the Tribunal did not have jurisdiction to review the Cancellation Decision are as follows:
(a)Under s 412 of the Act the Tribunal has jurisdiction to review a Part 7-reviewable decision in relation to a person if an application in the approved form is given by the person to the Tribunal within 28 days after the person has been notified of the decision.
(b)The notification of the decision must not contain inaccurate or potentially misleading information about the person’s right to apply to the Tribunal for review of the decision, or about the times by or within which the person may apply for a review.
(c)The Cancellation Notice incorrectly stated that the applicant is taken to have received the Cancellation Decision 7 working days after the date of the Cancellation Notice because:
(i)the statement relied on a method for giving documents purportedly provided for by reg 2.55(3)(c) of the Regulations that is not provided for by s 494B of the Act, that method being dispatching a document to a “post box address known to the Minister”;
(ii)the statement also relied on reg 2.55(7) of the Regulations to state that the applicant is taken to have received the Cancellation Notice “seven (7) working days after the date of the” Cancellation Notice; but reg 2.55 is invalid.
(d)Regulation 2.55 is invalid because it impairs or detracts from and, for that reason, it is inconsistent with, s 494A, s 494B, and s 494C of the Act (General Provisions); and that is for one or both of the following reasons:
(i)the General Provisions confer on the Minister a discretion in relation to the method by which the Minister may give a document he or she may be required or permitted to give, including by using any one of the 494B methods; yet, in relation to the cancellation of a visa, reg 2.55 of the Regulations requires the Minister to use, and only to use, the methods provided for in reg 2.55; and
(ii)reg 2.55 purports to extend the methods by which a document may be given that is provided for by s 494B of the Act.
(e)Given the invalidity of reg 2.55 of the Regulations, it was not open to the delegate to state in the Cancellation Notice that the applicant is taken to have received the Cancellation Notice “seven (7) working days after the date of the” Cancellation Notice; and that, therefore, the prescribed time frame for making an application to the Tribunal for review of the Cancellation Decision was 28 days commencing on the day the applicant is taken to have received the Cancellation Notice. The Cancellation Notice, therefore, did not contain accurate information about the period within which the applicant may apply to the Tribunal for review of the Cancellation Decision and, for that reason, did not constitute a notification of the Cancellation Decision.
The applicant particularly relies on the judgment of Judge Driver in EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[28] The applicant also relies on Morton v Union Steamship Co of New Zealand Ltd,[29] and a passage from the judgment of Hayne J in Plaintiff M47/2012 v Director-General of Security.[30]
[28] EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436
[29] Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402
[30] Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1, at [174]
The Minister, on the other hand, submits that reg 2.55 of the Regulations is not inconsistent to any extent with the General Provisions; and it does not in any way impair or detract from the General Provisions.[31] The Minister relies on the legislative history of reg 2.55 of the Regulations, noting that reg 2.55 was inserted in the Regulations by item 12 of Schedule 1 to the Migration Amendment Regulations 2001 (No 6) (Cth), and that it commenced on the same date as the Migration Legislation Amendment (Electronic Transactions and Methods of Notification) Act 2001 (Cth). The Minister submits that reg 2.55 of the Regulations and the General Provisions, therefore, form “part of the same statutory scheme”,[32] and they have differing fields of application. The Minister also submits that the reasoning in EUF20 is inconsistent with the reasoning of a number of judgments of the Federal Court.
[31] The Minister’s submissions are contained in two sets of written submissions, one set filed before the hearing, and the other filed on 3 June 2022 pursuant to leave granted at the hearing.
[32] Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86, at [69]
It may be noted that the parties implicitly assume that the delegate’s purporting to give the Cancellation Notice to the applicant by dispatching it by prepaid post to the post box address of the Long Bay Facility would satisfy reg 2.55(3)(c) of the Regulations. It is doubtful, however, that such assumption is warranted. Paragraph (c) of reg 2.55(3) refers to “the person’s” “post box address”. It is difficult to characterise the post box address of a correctional facility as the post box address of each of the facility’s inmates. It may very plausibly be argued that the post box address of the Long Bay Facility can only be the post box address of one person, namely, the Long Bay Facility, and not of the applicant and each of the inmates of the Long Bay Facility. Given this question was not raised and therefore litigated by the parties, and I only noticed late into the preparation of these reasons for judgment that the parties common assumption may not be correct, I do not propose to say anything further about whether the delegate’s purported giving of the 107 Notice by posting it to the post box address of the Long Bay Facility satisfied, or would have satisfied reg 2.55(3)(c) of the Regulations.
Approach
The parties agree there is a principle that a regulation may be invalid if it purports to cover a particular topic that is covered by the enabling statute, and the regulation is inconsistent with the enabling statute or, if not strictly inconsistent, it impairs or detracts from the enabling statute. The point of disagreement is whether reg 2.55 of the Regulations is inconsistent with, or impairs or detracts from, the General Provisions. The determination of that question raises the following issues:
(a)What are the relevant principles for determining the circumstances in which a regulation will be held to be invalid because it is inconsistent with the enabling statute, or because the regulation impairs or detracts from the enabling statute?
(b)What did EUF20 decide?
(c)Is reg 2.55 of the Regulations inconsistent with the General Provisions?
Principles
Although Chapter 1 of the Constitution vests the legislative power of the Commonwealth in the Parliament, that does not deny Parliament the power to authorise subordinate legislation (regulations). As Dixon J observed in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan,[33] the recognition of the power of Parliament to authorise the making of regulations “may be ascribed to a conception of that legislative power which depends less upon juristic analysis and perhaps more upon the history and usages of British legislation and the theories of English law”; and his Honour identified the following rationale of reserving to Parliament the power to authorise the making of regulations:[34]
In English law much weight has been given to the dependence of subordinate legislation for its efficacy, not only on the enactment, but upon the continuing operation of the statute by which it is so authorized. The statute is conceived to be the source of obligation and the expression of the continuing will of the Legislature. Minor consequences of such a doctrine are found in the rule that offences against subordinate regulation are offences against the statute . . . and the rule that upon the repeal of the statute, the regulation fails. . . . Major consequences are suggested by the emphasis laid . . . upon the retention by the Legislature of the whole of its power of control and of its capacity to take the matter back into its own hands.
[33] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, at pages 101-102
[34] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, at page 102
Given that the making of regulations must have as its source a statute, there are two essential conditions to the validity of any regulation. The first is the statute contains a provision (empowering provision) that authorises the making of regulations. The second is that the regulations fall within the terms of the empowering provision. The first question, and often the only question, that must be asked, therefore, when the validity of a regulation is in issue, is whether the regulation falls within the scope of the empowering provision. In determining that question:[35]
the court has a threefold task: first to determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorised to make, secondly, to determine the meaning of the subordinate legislation itself and finally to decide whether the subordinate legislation complies with that description.
[35] McEldowney v Forder [1971] AC 632, at page 658 (Lord Diplock)
In Esmonds Motors Pty Ltd v Commonwealth Barwick CJ described the approach a court should take when determining whether a regulation falls within an empowering provision as follows:[36]
The answer to the question whether the Minister is so authorized [under an ordinance to make the regulation in question] is to be found upon a full consideration of the Ordinance read as a whole with the object of finding in its expressions the intention with which it was made and, in particular, the intended extent of the regulation making-power given to the Minister: and an examination of the ambit of the regulations considered in relation to the scope and purpose of the Ordinance so ascertained: see Morton v. Union Steamship Co. of New Zealand Ltd [(1951) 83 CLR 402]
[36] Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463, at page 466 (Barwick CJ)

It will be seen that his Honour referred to Morton, a case on which the applicant relies. That case concerned the validity of a regulation made pursuant to an enabling power that was expressed in very general terms,[37] and which contained “no provision in the Act prescribing any matter or expressly permitting any matter to be prescribed to which the regulation would be relevant”.[38] In that context, the High Court said (emphasis added):[39]
A power expressed in such terms to make regulations enables the Governor-General in Council to make regulations incidental to the administration of the Act. Regulations may be adopted for the more effective administration of the provisions actually contained in the Act, but not regulations which vary or depart from the positive provisions made by the Act or regulations which go outside the field of operation which the Act marks out for itself. The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains. An important consideration is the degree to which the legislature has disclosed an intention of dealing with the subject with which the statute is concerned.
[37] “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 as may be necessary or convenient to be prescribed for giving effect to this Act or for the conduct of any business relating to the Excise” (Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, at pages 409-410)
[38] Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, at page 410
[39] Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402, at page 410
In Plaintiff M47/2012 v Director-General of Security, Hayne J referred to the emphasised portion of this passage and said:[40]
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.
The judgment in EUF20
[40] Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1, at [174] (footnotes omitted)
This case concerned the purported cancellation, pursuant to s 501CA(3)(a) of the Act, of a class of visa the applicant, Mr EUF20, did not hold. The Minister purported to give notice of the cancellation by posting a document (501CA Notice) recording the decision to the post box maintained by the correctional centre at which Mr EUF20 was detained. The 501CA Notice stated that Mr EUF20 was taken to have received it on a day that had been ascertained on the premise that the 501CA Notice had been given according to a manner provided for by reg 2.55 of the Regulations.
Mr EUF20 relied on three grounds of application. The first ground, which Judge Driver upheld, was that no valid decision had been made to cancel Mr EUF20’s visa because the decision to cancel was directed to a class of visa which was different from the class of visa Mr EUF20 held. The second ground, which his Honour also upheld, was that the Minister failed to discharge his obligations under s 501CA(3) of the Act. Neither of these two grounds relied on a contention that reg 2.55 of the Regulations was invalid.
Ground 3, however, did rely on such a contention; it claimed the Minister did not comply with s 501CA(4) of the Act because the 501CA Notice incorrectly stated that Mr EUF20 did not respond to the 501CA Notice within the time required by reg 2.52(2)(b) of the Regulations; and this statement was said to have been based on a number of propositions, one of which was that reg 2.55(7)(a) of the Regulations applied. Paragraph (f)(iii) of the particulars to ground 3 contended that this proposition is wrong because:[41]
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]
[41] EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436, at [14]
His Honour concluded reg 2.55 of the Regulations is invalid. His Honour found that reg 2.55 of the Regulations “impairs or detracts from” the operation of what his Honour described as the following “statutory scheme”:[42]
(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.
[42] EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436, at [112], [113]
His Honour found reg 2.55 of the Regulations “impairs or detracts from” this scheme in two ways. First, reg 2.55 of the Regulations provides that the Minister “must” give notice in one of the ways it sets out, “thereby detracting from the freedom given to the Minister under s 501CA(3)”.[43] Second, reg 2.55(7) provides for “deemed receipt in the case of dispatch by way of pre-paid post, in a manner which . . . 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)”.[44] That is so because the Act, in s 494B and s 494C, deals with a particular subject matter, which includes the giving of documents by pre-paid post, in a particular manner, yet reg 2.55 of the Regulations addresses the same subject matter by extending the methods by which the Minister may give a document by pre-paid post. His Honour said:[45]
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.
[43] EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436, at [113]
[44] EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436, at [114]
[45] EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436, at [117]
The Minister submits there is a body of Federal Court authority that is at odds with EUF20. First, the Minister refers to the Full Federal Court’s judgment in Zhang v Minister for Immigration and Citizenship.[46] The question in that appeal was whether the former visa holder had been given a cancellation notice by the method provided by reg 2.55(3)(c) of the Regulations. The notice was given by prepaid post at an address that was not the former visa holder’s residential or business address, but was an address the former visa holder provided to the Minister as his “address for correspondence”.[47] The former visa holder submitted that the address for correspondence he had provided to the Minister was not his residential, business, or “post box address”. The Full Federal Court rejected that submission, finding that “post box address” simply means “postal address for service” or “postal address for correspondence”.[48]
[46] Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151
[47] Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151, at [2]
[48] Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151, at [27]
The former visa holder also submitted “without elaboration” that s 494A of the Act “overrides the regulation”. The Full Federal Court found “[t]his contention is a futile one”:[49]
Let it be assumed for present purposes (i) there was no power to make reg 2.55 (s 504(1)(e) of the Act indicates to the contrary); (ii) reg 2.55 was inconsistent with the Act and could not be read and construed subject to the Act (cf Legislative Instruments Act 2003 (Cth), s 13 and, as we have indicated, reg 2.55’s obvious provenance in s 494B); or (iii) s 127 of the Act has no bearing upon the manner of exercise of the regulation making power. Nonetheless the Minister has chosen, as s 494A envisages, one of the methods provided in s 494B. Section 494C provides that it applies if the Minister “gives a document to a person by one of the methods specified in s 494B (including in a case covered by section 494A)”: emphasis added.
As we have already indicated, the method chosen in this matter conformed to that of s 494B hence it attracted under s 494C(4) the same deemed date of receipt as under reg 2.55(7) i.e. "7 working days ... after the date of the document".
In short the argument goes nowhere. It makes no difference on the facts of this matter whether the service was under s 494A, s 494B or reg 2.55...
[49] Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151, at [35]-[37]
The Minister particularly relies on the following passage from the Full Federal Court’s judgment:[50]
The additional comment that should be made about both s 494B and reg 2.55 is that both within their respective provinces are intended to be exhaustively proscriptive [sic] of the methods of “giving” available to the Minister.
[50] Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151, at [28]
This passage, considered alone, or in the context of the questions the Full Federal Court determined in Zhang, says nothing about whether reg 2.55 of the Regulations is or is not inconsistent with the General Provisions. No party claimed that reg 2.55 was inconsistent with the General Provisions; and the Full Federal Court therefore was not required to determine, and it did not consider, whether, assuming both s 494B of the Act and reg 2.55 are intended to be exhaustively proscriptive within their respective provinces, reg 2.55 operates inconsistently with s 494B. As it happened, in the circumstances of the case before the Full Federal Court, reg 2.55 of the Regulations and s 494B of the Act operated consistently because the method by which the Minister gave the cancellation notice was one that was provided for by both reg 2.55 and s 494B because the Minister considered giving the cancellation notice by using one of the methods provided for in s 494B. I therefore do not accept the Minister’s submissions that EUF20 is inconsistent with Zhang.
The Minister also relies on the Full Federal Court judgment in Singh v Minister for Immigration and Citizenship.[51] In that case the question was whether a notice that was given to the agent of the visa holder by a method (494A method) that was not a 494B method was validly given to the recipient. The Full Federal Court answered that question in the affirmative. The Minister relies on two passages from the Full Federal Court’s judgment. The first is “in cases of visa cancellation, s 494B is not an exhaustive statement of the methods by which notification of cancellation of a visa may be given by the Minister”.[52] The second passage is that it “is not possible to read the provisions of s 494B and reg 2.55 as supplementing each other”.[53]
[51] Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27
[52] Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27, at [42]
[53] Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27, at [55]
Given that there was not before the Full Federal Court in Singh any question about the validity of reg 2.55 of the Regulations, or about whether reg 2.55 operated inconsistently with the General Provisions, it is not reasonable to view these passages, or anything else the Full Federal Court said or decided in Singh, as undermining Judge Driver’s reasoning in EUF20. Further, the Minister does not attempt to put the passages on which he relies in the context in which they were made. The first of the two passage was directed to the 494A methods, and had nothing to do with reg 2.55 of the Regulations.
As for the second passage, it was directed to a notice of contention the Minister filed in which he contended that, contrary to the view of the primary judge, reg 2.55 of the Regulations applied to the giving of a document to the agent of the visa holder.[54] The Full Federal Court rejected the Minister’s notice of contention as having “no substance”, noting that reg 2.55 is concerned with the giving of a document to a person who actually holds, or held, a visa. It is in that context the Full Federal Court said that it “is not possible to read the provisions of s 494B and reg 2.55 as supplementing each other”.[55] It is not entirely clear what the Full Federal Court intended to convey by this passage without knowing the submissions the Minister made in support of his notice of contention. In any event, it is not possible to read the Full Federal Court as saying that reg 2.55 and the General Provisions operated within their own distinct fields, whether or not they operated inconsistently in their respective fields; and that would be so because that would attribute to the Full Federal Court the view that a regulation - reg 2.55 in this case - could operate inconsistently with the provisions of the enabling statute - in this case, the General Provisions.
[54] Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27, at [38]
[55] Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27, at [55]
I therefore do not accept the Minister’s submission that EUF20 is at odds with Federal Court authority.
Is reg 2.55 invalid?
The starting point is s 504(1) of the Act, being the empowering provision purportedly pursuant to which reg 2.55 of the Regulations was made:
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;
. . .
the Minister, the Secretary or any other person or body, for the purposes of this Act . . . .
There can be no question that reg 2.55 of the Regulations is a regulation “making provision for and in relation to . . . the giving of documents to . . . any . . . person” and, therefore, falls within s 504(1)(e) of the Act. The question is whether reg 2.55 of the Regulations is “inconsistent with this Act”.
The first step is to identify the provision or provisions of the Act by reference to which the question whether there is any inconsistency is to be determined. That requires the identification of the subject reg 2.55 of the Regulations covers: the question of inconsistency can only arise if the Act contains a provision or provisions that covers or cover at least to some extent the subject that reg 2.55 covers.
The subject reg 2.55 covers is identified in reg 2.55(1) of the Regulations: the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or cancellation of a visa. The Act also contains provisions that deal with the giving of documents, these being the General Provisions (that is, s 494A, s 494B, and s 494C). There are, however, three relevant differences between reg 2.55 and the General Provisions.
(a)The first is the range of cover. The General Provisions cover the giving of documents in general, whereas reg 2.55 of the Regulations covers the giving of documents in relation to the cancellation or proposed cancellation of visas. The subject reg 2.55 covers is wholly included within the subject the General Provisions cover.
(b)The second difference relates to the methods by which a document is to be given. The General Provisions identify two classes of methods for giving a document - the closed class of 494B methods, and the open class of any method that is not a 494B method which the Minister considers appropriate (these being what I described above as the “494A methods”). The methods for giving a document reg 2.55 identifies (2.55 methods) consists of the 494B methods.[56]
(c)The third difference relates to the circumstances in which the 2.55 methods and the General Provisions apply to the giving of documents. Under reg 2.55(1), at least one of the 2.55 methods must be applied whenever the Minister is required or permitted to give a document in relation to the cancellation or proposed cancellation of a visa. Under the General Provisions, on the other hand:
(i)in relation to the giving of a document (494B document) which a provision of the Act or Regulations requires or permits the Minister to give and which also requires the Minister to give by one of the 494B methods, the Minister must give such document by at least one of the 494B methods; and
(ii)in relation to the giving of a document that is not a 494B document (494A document), the Minister may give the document by one of the 494B methods or by any 494A method.
[56] Given that in Zhang the Full Federal Court construed “post box address” to mean no more than “postal address for service” or “postal address for correspondence” (at [27]), the method described in reg 2.55(3)(c) of the Regulations of giving a document by dispatching by prepaid post to the “person’s last . . . post box address” equates with the method provided for in s 494B(4)(c)(i), namely, “last address for service”.
From this analysis, it is apparent that reg 2.55 and the General Provisions have the potential of applying inconsistently to the Minister’s giving a 494A document in relation to the proposed cancellation or cancellation of a visa by use of a 494A method. The General Provisions would permit the Minister to give the document by such method; but reg 2.55 would require the Minister to give the document by one of the 2.55 methods and therefore not permit the Minister to give the document by use of a 494A method. To that extent reg 2.55 and the General Provisions cannot both stand; and given that reg 2.55 is subordinate to the General Provisions, the regulation is invalid, at least to the extent of the inconsistency.

The possibility of reg 2.55 of the Regulations and the General Provisions operating inconsistently is not fanciful or remote; and the possibility may be illustrated by the facts in BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[57] In that case a notice issued under s 501CA(3) of the Act was given by an official within the Department sending an email to an officer of the correctional facility in which the former visa holder was being detained with instructions to the officer about the delivery of the notice to the former visa holder. That is not a method for giving a document provided for by reg 2.55 of the Regulations or by s 494B of the Act; but it was a method for giving the document the Minister considered to be appropriate, and therefore what I have called a 494A method. The method the Minister chose in BYN18 would be subject to two conflicting legal conclusions. On the one hand, given it was not a method provided for by reg 2.55 of the Regulations, the Minister gave the document in a way contrary to the obligation reg 2.55 purportedly imposed on the Minister to give the document by any one of the 2.55 methods and, for that reason would not be valid. On the other hand, the method the Minister chose to give the document was a 494A method, and s 494A of the Act permitted the Minister to give the document by that method. The giving of the document, therefore, would be valid. A regulation which purports to render invalid that which a provision of the enabling statute permits cannot stand with the provision, and is of no legal effect to the extent of the inconsistency.
[57]BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63
Thus, I respectfully agree with the first ground on which Judge Driver in EUF20 found that reg 2.55 of the Regulations impairs or detracts from the General Provisions. I am unable to agree, however, with the second ground on which his Honour found that reg 2.55 impairs or detracts from the General Provisions. That ground is premised on the view that s 494B and s 494C of the Act reflect “the manner” the Act dealt with the subject matter covered by those provisions, which in turn reflect the striking of a balance “between administrative certainty and the interests of the recipient”.[58] With respect, these observations are not supported by the text of the General Provisions. With the exception of the giving of what I have called “494B documents”, s 494A of the Act expressly reserves to the Minister the power to give a document to a person by any method the Minister considers appropriate. That would include a method that is not a 494B method. I therefore respectfully disagree with the judgment in EUF20 to the extent it holds that reg 2.55 of the Regulations is inconsistent because it provides for methods of giving a document that exceed the methods for giving a document provided for by the General Provisions.
[58] EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436, at [117]
Was the Cancellation Notice given under s 494B(4)?
The Minister submits that even if it was not open to the delegate to rely on reg 2.55 of the Regulations, the delegate did give the Cancellation Notice to the applicant by the method provided for by s 494B(4) of the Act. The Minister relies on the email the delegate sent to the Manager of Security at the Long Bay Facility on 26 May 2017, and the email the Manager of Security sent on the same day in which he stated that the applicant “requests a new package, if possible”. The Minister submits that this request constituted the provision to the Minister of an address for service for the purpose of receiving documents within the meaning of s 494B(4)(c)(i) of the Act, that address being Long Bay Facility’s post box. The Minister submits that this is so, even though the applicant did not provide a registered post address to the Minister, because it was not unreasonable for the Minister to proceed on the basis that that was a method by which the applicant wished to receive documents, given that the 107 Notice had been sent to the Silverwater Facility post box address.
The question is whether from the statement the Manager of Security at the Long Bay Facility made in his email to the delegate sent on 26 May 2017 that the applicant “requests a new package, if possible” affords a rational basis for finding that the applicant provided to the Minister the post office box maintained by the Long Bay Facility as an address for service for the purposes of receiving documents. That question must be answered in the negative. The most the evidence is capable of supporting is that the applicant had requested the Manager of Security or some other officer at the Long Bay Facility that the applicant be sent a “new package”. It cannot support a finding that the applicant also specified the means by which the Minister would send the “new package” to the applicant.
In any event, the evidence is incapable of supporting a finding that the delegate considered, or could reasonably have considered, that, by the applicant requesting that he be sent a “new package” the applicant intended to provide the Long Bay Facility’s post box as an address for service for the purpose of receiving documents from the Minister. The delegate, on 29 May 2017, provided the applicant with a copy of the 107 Notice by email, not by post addressed to the Long Bay Facility’s post box. Had the delegate considered the applicant did in fact provide the Long Bay Facility’s post box as an address for service for the purpose of receiving documents from the Minister, the delegate would have given the applicant a copy of the 107 Notice by posting it to the Long Bay Facility’s post box rather than by emailing the document; and, having emailed, rather than posted, the copy of the 107 Notice, the delegate could not reasonably have considered that the applicant intended to provide the Long Bay Facility’s post box as an address for service for the purpose of receiving documents from the Minister, including a notice cancelling the applicant’s Protection visa.
The Minister further submits that, even if the Minister made an error in sending the Cancellation Notice to the post box address of the Long Bay Facility “because he purported to send the notice by the method specified in s 494B(4)(c), by reason of s 494C(7) the applicant was taken to have received the [Cancellation Notice] at the time specified in s 494C(4)(a)”, that is, 6 July 2017.[59] The error the Minister submits the delegate made is that which the Minister identifies in that part of his written submissions that deal with the validity of the 107 Notice,[60] namely, “that the Minister thought that the applicant had provided to the Minister the addresses to which the notices were sent”. The submission appears to be that each of the addresses to which the 107 Notice was sent, including the Silverwater Facility post box address, was not an address the applicant had provided to the Minister, and the Minister’s mistake was that he believed each of the addresses was an address the applicant had given, and that the Minister purported to give the 107 notices to those addresses using one or more of the 494B methods,
[59] Outline of Submissions of the First Respondent [41]
[60] Outline of Submissions of the First Respondent [48]
The Minister, however, has not identified any evidence that could support the elements of this asserted error, other than evidence to show 107 notices had been sent to particular postal and email addresses. There is no evidence of how the particulars of the addresses to which the Minister had sent the October 2016 107 Notice, the January 2017 107 Notice, and the 107 Notice came to the Minister’s attention; and whether these addresses were capable of giving rise to a belief, erroneous or otherwise, that they constituted “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”, or “the last fax number, email address or other electronic address, as the case may be, provided to the Minister for the purposes of receiving documents” within the meaning of s 494B(4) and (5) of the Act. Thus there is no evidence on the basis of which it would be open to find that the Minister purported to give any of the 107 notices in accordance with one of the 494B methods, but made an error in doing so.
I therefore do not accept the Minister’s submission.
Conclusion
The delegate purported to give the Cancellation Notice to the applicant by a method provided for by reg 2.55 of the Regulations which I have held is invalid, at least to the extent it purported to require the Minister to give a document by a number of methods that included the dispatching of a document by prepaid post to a post box address. Further, the applicant did not provide to the Minister the post box address of the Long Bay Facility as an address for service for the purpose of receiving documents for the purposes of s 494B(4)(c)(i) of the Act. For these reasons, the Cancellation Notice did not correctly describe the day on which the 28 day period for the applicant to apply to the Tribunal for review of the Cancellation Decision would commence, and that the applicant, therefore had not been notified of the Cancellation Decision. That means that the 28 day period provided for by s 412 of the Act within which the applicant could apply for review of the Cancellation Decision had not commenced and the applicant, therefore, applied for review of the Cancellation Decision within the time provided for by s 412 of the Act. The Tribunal, therefore, had jurisdiction to review the Cancellation Decision.
grounds of application
I next turn to the grounds of application.
Ground 1
Ground 1 is as follows:
The Tribunal’s decision is affected by jurisdictional error as the Tribunal proceeded on an incorrect understanding of the law in finding that the notice of intention to consider cancellation (NOICC) issued to the applicant by a delegate of the First Respondent on 17 March 2017 complied with the requirements of s 107 of the Act.
Particulars
a. The applicant contended before [the] Tribunal that the NOICC did not comply with s 107(1)(b) of the Act because it did not correctly state how the timeframe for response was to be calculated.
b. The NOICC was sent by post to the address “Metropolitan Remand & Reception Centre, Private Bag 144, SILVERWATER NSW 1811” (MRRC address). It stated that the applicant was taken to have received the notice 7 working days after the date of the letter.
c. This proposition was incorrect because the NOICC was not sent in accordance with s 494B of the Act – the MRRC address was not an address provided to the Minister by the applicant for the purposes of receiving documents.
d. The Tribunal found that reg 2.55 of the Migration Regulations 1994 applied and that a notification had been dispatched to the last address known to the Minister: [13]-[14].
e. The Tribunal should have found that reg 2.55 did not apply; or alternatively was invalid to the extent of inconsistency with ss 494B-494C of the Act: EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436.
f. As a result, the NOICC was invalid and the Tribunal erred in failing to set aside the decision under review and substitute a decision that there was no power to cancel the applicant’s protection visa under s 109 of the Act.
The applicant’s challenge to the validity of the 107 Notice relies on the same arguments for submitting the Cancellation Notice did not constitute a notification of the Cancellation Decision. In relation to the 107 Notice the applicant submits that the method by which the delegate purported to give the 107 Notice to the applicant was not a 494B method, but was a method purportedly given under reg 2.55 of the Regulations; given reg 2.55 is invalid to the extent it purports to require the Minister to give a document by a number of methods that included dispatching of a document by prepaid post to a post box address, the 107 Notice did not crystallise the 14 day period within which the applicant was required to respond to the 107 Notice in the manner provided for by s 107(1) of the Act. That means the 107 Notice was of no legal effect; and an essential precondition to the exercise of the power under s 109 to cancel the applicant’s Protection visa was not satisfied, which in turn means the delegate’s purported cancellation of the applicant’s Protection visa was also of no effect.
The Minister submits that reg 2.55 of the Regulations is not invalid. For reasons I have already given, I have concluded reg 2.55 is invalid, at least to the extent it purported to require the Minister to give a document by a number of methods that included the dispatching of a document by prepaid post to a post box address. The Minister also submits:[61]
[T]he applicant was notified of the Minister’s intention to consider cancellation of his visa by letter sent by registered post to:
a. his last known residential address known to the Minister, being an address in Mount Druitt, on 28 October 2016 (CB 56-69);
b. his last residential address known to the Minister, being an address in Rhodes, on 12 January 2017 (CB 70-80); and
c. his last post box address known to the Minister, being a post box address of the Metropolitan Remand and Reception Centre where the applicant was incarcerated, on 17 March 2017 (CB 81-90).
[61] Outline of Submissions of the First Respondent [44], [48]
The Minister relies on these submissions to submit that it was open to the Tribunal to rely on any three of the October 2016 107 Notice, the January 2017 107 Notice, and the 107 Notice itself. Even if the legal premise underlying this submission is correct, the Minister cannot succeed on it because there is no evidence to support the factual premises on which it relies. The Minister has not adduced any evidence it may reasonably be supposed is within the power of the Minister to adduce on the basis of which it may be found that the notices were given by any one or more of the 494B methods. Further, that the Minister purported to give two notices pursuant to the 107 Notice itself suggests the Minister may not have any true conviction that those documents had been given by a method provided for by s 494B of the Act or reg 2.55 of the Regulations.
The asserted legal premise on which the Minister relies is that the rights that have accrued under previous notices that had been validly issued under s 107(1) of the Act are preserved if a later notice purportedly issued under s 107 of the Act is invalid, and the Tribunal may rely on those rights, even if the Tribunal had purported to rely on an invalid notice. This submission is not developed, but is supported by a footnote which states “[s]ee, by analogy, Brown v West (1990) 169 CLR 195 at 203)”. This is not a sufficient basis for me to consider the merits of the legal premise on which the Minister relies, and, for that reason, I do not accept it.
The applicant, therefore, succeeds on ground 1.
Grounds 2 and 3
Given the applicant has succeeded on ground 1, I do not propose to consider grounds 2 and 3, other than note that the Minister does not wish to be heard on grounds 2 and 3, and the Minister accepted that the Tribunal failed to deal with the applicant’s claim to fear harm in immigration detention because he had agreed to give evidence for the prosecution in a murder trial.[62]
[62] Outline of Submissions of the First Respondent [8]
Disposition
I will make an order setting aside the Tribunal’s decision, and an order that the Tribunal consider the application for review according to law.
There would be utility in making a declaration that reflects my conclusion that reg 2.55 of the Regulations is invalid. In formulating the declaration, however, I must consider s 13(2) of the Legislative Instruments Act 2003 (Cth), which provides:
If any legislative instrument would, but for this subsection, be construed as being in excess of the rule‑maker’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.
This reflects similar provisions in interpretation acts, such as s 46(1)(c) and s 15A of the Acts Interpretation Act 1901 (Cth), the scope of which has been considered in a number of cases. For present purposes, the following passage from the judgment of Merkel J in Evans v Minister for Immigration & Multicultural & Indigenous Affairs may be taken to state the relevant principles:[63]
[63] Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945, at [38]-[42]
In Foxtel Management Pty Ltd v Australian Competition Consumer Commission (2000) 173 ALR 362 at 397 Wilcox J observed:
“Section 46(1)(b) of the Acts Interpretation Act, and the analogous s15A of that Act, have been discussed in numerous High Court decisions. Those to that date were collected by Dixon J in Fraser Henleins Proprietary Limited v Cody (1945) 70 CLR 100 at 127. His Honour there remarked that the ‘device of expressly providing against the consequence of some parts of a statute proving ultra vires’ originated in the United States. He said such provisions ‘establish a presumption in favour of the independence, one from another, of the various provisions of an enactment, to which effect should be given unless some positive indication of interdependence appears from the text, context, content or subject matter of the provisions’.”
Although on appeal the Full Court disagreed with his Honour’s conclusion that severance was appropriate in that case it did not disagree with the principles stated by his Honour: see Telstra Corporation Ltd v Seven Cable Television Pty Ltd (2000) 102 FCR 517 at 547.
The operation of s 46(1)(b) of the Interpretation Act was also considered by the High Court in Harrington at 326-332 in the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ. Although their Honours observed that issues of severance were “notoriously difficult”, they regarded s 46(1)(b) as, at the least, adopting the common law rules which were stated (at 328) as follows:
“As to the common law in Australia, the position, as established by the earlier decisions of this Court to which we have referred appears to be that a valid operation for the sub-rules might be preserved after textual surgery by operation of the ‘blue pencil’ rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject-matter dealt with from what it would otherwise be.”
In Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 347-348 Dawson J summarised the effect of s 15A of the Interpretation Act:
“The effect of s 15A is to reverse the presumption that an enactment is intended to operate as a whole. Under s 15A each provision is to be read upon the basis that it was the intention of the legislature that it should be given effect to the extent that it is not in excess of legislative power. That process is, of course, most conveniently carried out where the statute is organised so that its various applications are separately expressed, thus enabling the valid portions to be simply severed from the invalid. Even then, s 15A will not operate to save the remaining provisions if, after severance, they have a different operation or effect from that which they had before severance, for the intention of Parliament is to be discerned by reading the statute as a whole and that intention is not to be displaced as a result of a reading down process under s 15A. It is one thing to give that which remains the operation which it was always intended to have. It is another thing to give it a different operation as a result of severing the invalid from the valid.”
Severance is more likely where separable words or expressions are used: see Pidoto v Victoria (1943) 68 CLR 87 at 110, Department of Premier v Birrell (No 2) [1990] VR 51 at 65-66. Further, the test, for severance is qualitative rather than quantitative. Thus, in Pidoto Latham CJ observed (at 110):
“If a law is stated to apply to cases A, B and C in express terms and the application of the law to B and C is beyond power, then the law may validly apply to A unless the striking out of the provisions with respect to B and C results in the law having a different policy or operation in relation to A.”

The principal text of reg 2.55 of the Regulations that led me to conclude that reg 2.55 is inconsistent with the General Provisions is the inclusion of “must” in reg 2.55(3). “Must”, in its ordinary usage, imposes an obligation. I do not think it is open to construe “must” as “may” to preserve the validity of reg 2.55, because that would give reg 2.55 a different operation to the one the maker of the regulation intended it to have.[64] In any event, my construing “must” to mean “may” would serve no purpose because reg 2.55 would then have no effect beyond what is already provided by the General Provisions. I therefore propose to declare that reg 2.55 is invalid because it is inconsistent with the General Provisions.
[64] The Minister, for different reasons, submitted that it is not possible to read down reg 2.55 of the Regulations to the extent it may operate validly – Supplementary Submissions of the First Respondent [20]-[27]
Finally, there is the question of costs. Costs should follow the event; and I will order that the Minister pay the applicant’s costs as agreed or as taxed.

I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis.
Associate:
Dated: 2 September 2022

File number(s):	SYG 2406 of 2021
Judgment of:	JUDGE MANOUSARIDIS
Date of judgment:	2 September 2022
Catchwords:	MIGRATION – application for remedies under s 476 of the Migration Act 1958 (Cth) (Act) in relation to a decision affirming a decision made by a delegate of the first respondent (Minister) purportedly pursuant to s 109(1) of the Act to cancel the applicant’s Protection visa – whether reg 2.55 of the Migration Regulations 1994 (Cth) (Regulations) purportedly pursuant to which the delegate notified the applicant of the decision to cancel the Protection visa was invalid as being inconsistent with s 494A, s 494B, and s 494C of the Act – reg 2.55 of the Regulations inconsistent and therefore invalid – whether the method by which the delegate purported to notify the applicant of the decision to cancel the Protection visa was a method provided for by s 494B of the Act – method of notification was not a method provided for by s 494B of the Act – whether, given the applicant was not notified of the decision to cancel the Protection visa the Tribunal had jurisdiction to review the cancellation decision – Tribunal had jurisdiction to do so – whether the delegate gave to the applicant the notice the delegate issued pursuant to s 107(1) of the Act by a method provided for by s 494B of the Act – delegate did not give such notice by a method provided for by s 494B of the Act – whether the delegate’s purported cancellation of the Protection visa pursuant to s 109(1) of the Act was therefore of no effect – purported cancellation of no effect – relief granted.
Legislation:	Acts Interpretation Act 1901 (Cth) ss 15A, 46(1)(c) Legislative Instruments Act 2003 (Cth) s 13(2) Migration Act 1958 (Cth) ss 5AA, 66, 67, 101, 102, 103, 104, 105, 106, 107, 108, 109, 111, 112, 116, 127, 138, 411(1)(d), 412, 476, 478, 494A, 494B, 494C, 501CA(3), 501CA(4), 504 Migration Regulations 1994 (Cth) regs 2.16, 2.20A(2)(a), 2.42, 2.44, 2.52(2)(b), 2.55, 4.31
Cases cited:	BYN18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 63 Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 63 Esmonds Motors Pty Ltd v Commonwealth (1970) 120 CLR 463 EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436 Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945 McEldowney v Forder [1971] AC 632 Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 Morton v Union Steamship Co of New Zealand Ltd (1951) 83 CLR 402 Parata v Minister For Home Affairs & Anor [2020] FCCA 1582 Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86 Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 Wang v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 386 Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; [2007] FCAFC 151
Division:	General
Number of paragraphs:	106
Date of last submission/s:	3 June 2022
Date of hearing:	6 and 18 May 2022
Place:	Sydney
Counsel for the Applicant:	Ms K Heath, by video
Solicitor for the Applicant:	Legal Aid NSW
Counsel for the First Respondent:	Mr B Kaplan, by video
Solicitor for the First Respondent:	Sparke Helmore Lawyers

SYG 2406 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	EVE21 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	JUDGE MANOUSARIDIS
DATE OF ORDER:	2 september 2022