Gibson v Minister for Home Affairs - [2020] HCATrans 46

[2020] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M111 of 2019

B e t w e e n -
MICHAEL DONALD GIBSON
Plaintiff
and
MINISTER FOR HOME AFFAIRS
Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 26 MARCH 2020, AT 10.15 AM

MR A. ALEKSOV: May it please the Court, I appear for the plaintiff. (instructed by Lawson Bayly)

MR A.F. SOLOMON‑BRIDGE: If it please, your Honour, I appear for the defendant. (instructed by Sparke Helmore)

HIS HONOUR: Thank you both very much. I understand we also have the solicitors by audio link to two further locations, although not by video link.

Before we commence, could I just say that I am very grateful to both of the counsel and the solicitors for working with the extraordinary IT staff of this Court to implement this electronic hearing, which I am told is now capable of accommodating of up to 10 remote locations. It is my hope that this hearing will prove to be a successful model for the next electronic hearing which will be a hearing of the Full Court scheduled in April. The Court is a vital public service and your assistance and co‑operation is essential to keeping this service available, particularly in cases of pressing importance.

Mr Aleksov, I have received your outline of written submissions. Before you commence, can I just understand what you mean by paragraph 1.

MR ALEKSOV: Yes, your Honour. There was a proposed attempt to amend the application for a constitutional writ to rely on an argument based on a case called EFX17.

HIS HONOUR: Yes.

MR ALEKSOV: I think EFX17 is up for special leave in this Court at the moment. I am not sure whether or not your Honour received that amendment, but we ‑ ‑ ‑

HIS HONOUR: I have read all the papers. What I did not quite understand “arose because” the amendment raises a number of different issues. Is what you are saying in paragraph 1 that you are not relying upon any of those new issues raised by the amendment?

MR ALEKSOV: Yes, that is so, your Honour.

HIS HONOUR: I see. Yes, all right.

MR ALEKSOV: Thank you. The only argument that we wish to press in this Court is as set out in the initial application for a constitutional writ based on the points of construction of section 501CA of the Migration Act and regulation 2.52 of the Migration Regulations.

HIS HONOUR: Yes.

MR ALEKSOV: If your Honour pleases then, the plaintiff needs enlargements of time under the Rules and under the Migration Act and our submission is he should have those enlargements. Your Honour will have two affidavits from my instructing solicitor, Mr Bayly, dated 17 September 2019 and 11 December 2019.

HIS HONOUR: Yes, I have read those and I will take those as read.

MR ALEKSOV: Thank…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Gibson v Minister for Home Affairs and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] HCATrans 46
Decision Date

CaseChat Overview and Summary

The plaintiff, Michael Donald Gibson, sought constitutional writs from the High Court of Australia against the Minister for Home Affairs. The dispute concerned the interpretation of provisions within the *Migration Act 1958* (Cth) and its associated regulations, specifically section 501CA of the Act and regulation 2.52 of the *Migration Regulations 1994* (Cth), in relation to the revocation of a visa cancellation. The plaintiff argued that even if he failed to comply with the time limits specified for making representations seeking revocation, the Minister retained the power to consider and potentially revoke the cancellation.

The central legal issue before the Court was whether the time limit stipulated in regulation 2.52, read in conjunction with section 501CA(3)(b) and (4)(a) of the *Migration Act*, constituted a jurisdictional precondition to the Minister's power to revoke a visa cancellation. The plaintiff contended that non-compliance with the time limit did not extinguish the Minister's jurisdiction to consider a request for revocation, nor did it prevent the Minister from exercising the power to revoke. The Court was required to determine the consequences of non-compliance with these provisions, considering the statutory construction of the *Migration Act* and relevant case law, including *Project Blue Sky Inc v Australian Broadcasting Authority*.

The plaintiff's argument relied on the principle that the consequences of non-compliance with statutory provisions are a matter of statutory construction. He submitted that the *Migration Act* contained significant textual and contextual indications, including comparisons with earlier legislative formulations in sections 501D and 501C(10), suggesting that Parliament did not intend for non-compliance with the time limit to be an absolute bar to the Minister's power to revoke. The plaintiff argued that the primary consequence of late representations was not the loss of jurisdiction, but rather the engagement of the duty to remove the person from Australia under section 198(2B)(c) of the Act. This meant that while a person might still be able to make representations, they could be removed offshore before those representations were considered. The plaintiff accepted that in practical terms, this could mean there was no effective time limit on making representations, although the delay itself could be a decisive factor in the Minister's decision.

Orders