Gibson v Minister for Home Affairs
[2020] FCCA 2731
•5 October 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GIBSON v MINISTER FOR HOME AFFAIRS | [2020] FCCA 2731 |
| Catchwords: STATUTORY CONSTRUCTION – Invalidity – whether a purpose of the Migration Act 1958 (Cth) that representations rendered unlawful by reason of having been lodged out of time should nonetheless be considered valid so as to preserve the power to consider revocation – whether by operation of the 28 day time limit prescribed by reg 2.52(2)(b) of Migration Regulations 1994 (Cth), read with ss 501CA(3)(b) and 501CA(4) of the Act, respondent is not permitted to consider a request for revocation of the original cancellation decision, if representations for revocation of cancellation decision are made outside that period – applicable principles – where issue determined adversely to applicant by decision of the Federal Court in BDS20 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 – where decision in BDS20 published on date of hearing in this proceeding – Federal Circuit Court bound by decision of Federal Court – where applicant contends BDS20 wrong and did not entail consideration of issues raised in this proceeding – power conferred by s 501CA(4) spent once time limit has expired. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.15AA, 15AB, 15AB, 25C |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue (2009) 239 CLR 27 BDS20 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 Carr v Western Australia (2007) 232 CLR 138 |
| Applicant: | MICHAEL DONALD GIBSON |
| Respondent: | MINISTER FOR HOME AFFAIRS |
| File Number: | MLG 1926 of 2020 |
| Judgment of: | Judge A. Kelly |
| Hearing date: | 14 August 2020 |
| Date of Last Submission: | 14 August 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 5 October 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Gilbert with him, Mr A. Aleksov |
| Solicitors for the Applicant: | Lawson Bayly |
| Counsel for the Respondents: | Mr A. Solomon-Bridge |
| Solicitors for the Respondents: | Sparke Helmore Lawyers |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth), direct that the parties be allowed to appear and to make submissions before the Court via audio and video link.
The amended application filed on 12 March 2020 as remitted to this Court pursuant to the order made on 26 March 2020, together with the application filed on 31 July 2020, be dismissed.
By consent, the applicant pay the respondent’s costs of and incidental to the proceeding, from:
(a)the filing of the application on 17 September 2019 until its remittal in the High Court of Australia, fixed in the sum of $18,300.
(b)its remittal to this Court, fixed in the sum of $3,000.
By consent, there be no order as to the costs of this proceeding from and including 10 August 2020.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1926 of 2020
| MICHAEL DONALD GIBSON |
Applicant
And
| MINISTER FOR HOME AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 31 July 2020, the applicant seeks relief in the nature of a writ of mandamus to compel the Minister of Home Affairs (Minister) to exercise a duty which, it is said, he had failed to exercise in not giving consideration to representations admittedly made out of time and in not considering whether to revoke a decision made to cancel a Class TY Subclass 444 Special Category visa (visa) in accordance with the power conferred by s 501CA(4) of the Migration Act 1958 (Cth) (Act).
The result of the application turns on the proper construction of s 501CA of the Act which governs the circumstances in which the Minister may revoke a decision made under s 501(3A) to cancel the visa in respect of a person whom the Minister is satisfied has a substantial criminal record of the requisite type and who is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.
The substantive question is whether the power conferred by s 501CA(4) of the Act to revoke a cancellation decision is spent and cannot be revived after the expiry of the period (as ascertained in accordance with the applicable regulation under the Migration Regulations 1994 (Cth) (regulations), within which representations may be made for the Minister to consider whether to revoke the original decision.
The application, which comes before this Court by way of remittal from the High Court of Australia, was argued on 14 August 2020. On the same date, judgment was delivered in BDS20 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs[1] in which Stewart J held that, upon expiry of the applicable period for the making of representations to the Minister for revocation of the decision to cancel the visa, the power so conferred by s 501CA(4) was spent and could not be revived. His Honour further held that, since the Minister lacked jurisdiction to make any decision to revoke the cancellation of the visa, the Minister “could not lawfully have reached any decision other that the one that he did, namely that his power to revoke the cancellation was not enlivened” and that “he simply lacked the power to do anything other than to, in effect, reject the application . . .”[2]
[1] [2020] FCA 1176, (BDS20).
[2] [2020] FCA 1176, [7], [52]-[53].
The parties are agreed that this Court is bound by the holding in BDS20. However, the applicant, wishing to preserve his rights, formally submits that this Court is bound by that decision and further, contends that the arguments raised in this proceeding were not raised in BDS20. In light of those matters, the parties were effectively agreed in the result of the application but nonetheless, seek reasons for my decision.
In summary, and quite apart from being bound by BDS20, I conclude that where, within the 28 day time limit fixed by reg 2.52(2)(b) of the regulations, a person had not made representations pursuant to and in accordance with an invitation given to do so, the power conferred by s 501CA(4) of the Act to consider whether to revoke a decision to cancel their visa is spent and that thereafter, the Minister has no jurisdiction to consider representations that are lodged out of time. There being no power or duty to consider representations made out of time, it follows that mandamus is not available to compel the Minister to do so. Giving ss 501CA(3)(b) and 501CA(4)(a) a harmonious construction, the term ‘invitation’ means an invitation to make representations within the period and in the manner as ascertained in accordance with reg 2.52(2).
Background
Although the parties were agreed the determination of the issues arising on the application turned upon the proper construction of the statutory provisions in question, each sought to draw attention to particular aspects of the background to the proceeding, doing so for the apparent purpose of providing context in which s 501CA(4) should be construed. While it seemed to be accepted that ‘context’ of that kind might have more relevance to a question of validity, it was also agreed that a validity based challenge had been abandoned at an earlier stage of the proceeding. Otherwise, the background was common ground.
The applicant is currently in detention. He is a citizen of New Zealand aged 52 years who in April 1979, and then aged 11 years, first came to Australia with his family. He and his family have since lived in Australia, doing so without applying for Australian residency or citizenship.
On 26 October 2012, the applicant was granted the visa which was cancelled on 10 July 2018 in the exercise of power under s 501(3A) of the Act.
On 4 September 2017, the applicant was convicted of the offence of reckless wounding. He was sentenced in the District Court at Parramatta to a term of imprisonment of 41 months, operative with effect from 2 October 2016 and expiring on 1 March 2020 with a non-parole period of 24 months. Within the order that was tendered in evidence, it was recorded that a 12.5% discount had been given on that sentence by reason of special circumstances; namely, the entry of a plea of guilty. The material tendered in this Court included a record of the applicant’s historical offending over the period 1986 – 2016. While the applicant’s earliest date for release was 1 October 2018, he was released in 2020.
By letter dated 10 July 2018 (July letter), addressed by registered post to the applicant at the Bathurst Correctional Centre, the Department of Home Affairs (Department) notified him that his visa had been cancelled under s 501(3A) of the Act (cancellation decision).
By the July letter, the applicant was further advised that the person who had cancelled the visa was a delegate of the Minister who had been satisfied that the applicant did not pass the character test by reason that he had a substantial criminal record (as defined) and that, at the time of the decision, he was serving a sentence of imprisonment, on a full-time basis in a custodial institution for an offence of a relevant kind. In particular, the July letter stated beneath a heading, in bold type, Opportunity to seek revocation of the cancellation decision, that the applicant had an opportunity to make representations about revoking the decision to cancel his visa and he was invited to make such representations. The July letter advised the applicant that the Minister may revoke the decision to cancel the visa if he made representations.
In several places within the body of the July letter, and in various attachments, it was stated that a 28 day time limit operated within which representations might be made (being 28 days after he was deemed to have received that document). Relevantly, it stated:
Time-frame to make representations about revocation
Any representations made in relation to the revocation of a mandatory cancellation decision must be made within the prescribed timeframe. The combined effect of s 501CA(3)(b) and s 501CA(4) of the Act and Regulation 2.52 of the Regulations is that any representations MUST be made within 28 days after you are taken to have received this notice.
If you make representations about revocation of the visa cancellation decision but the representations are received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider the decision because they would not have been made in accordance with the invitation, as required by s 501CA(4) of the Act
Lodging the Revocation Request Form
If you decide to make representations to the Minister to revoke the mandatory cancellation of the visa, it is essential that you complete and lodge the Revocation Request Form within 28 days after you are taken to have received this notice is this timeframe cannot be extended.
If, following lodgement of the Revocation Request Form within the 28day period, you wish to provide additional information, you may do so . . .
As this notice was sent by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this notice. A working day does not include weekends or public holidays in the Australian state or territory to where this notice was posted.
The July letter was accompanied by eleven enclosures, including:
a)an information sheet stating, in capital letters, that it contained important information respecting the applicant’s status in Australia including that he had a right to seek revocation of the cancellation decision and that if he chose to do so his representations must be made within 28 days after he was taken to have received the letter. Again, a postal, email and facsimile address was provided;
b)a pro forma ‘Request for revocation’ which also stated that his request must be received by the Department within 28 days after the date on which he was taken to have received the notice regarding cancellation of his visa;
c)a ‘Personal circumstances’ form which advised that: “if your visa is cancelled under character grounds and you are removed from Australia, you can never return to Australia under the law as it presently stands.”;
d)a form entitled ‘Advice by a migration agent/exempt person of providing immigration assistance’ together with a document on the availability of legal aid services in Australia;
e)a list of ‘Frequently Asked Questions – mandatory cancellation’ which stated that “If you have not applied for revocation within the stated timeframe you lose the opportunity to apply and will be removed from Australia at the earliest opportunity. You may apply to the courts if you believe there has been a legal error in the decision to cancel your visa.”
Although the quantity of material is readily apparent, it was not submitted that this, of itself, served to assist in an understanding of the gravity of the matter or to draw attention to the effect suggested by the reference to a 28 day time limit for making representations.
The July letter provided an email and facsimile address to which representations could be sent. So too, the enclosures to the July letter stressed the importance and necessity of the applicant responding within 28 days after the applicant was taken to have received the notice, should he wish to seek revocation of the cancellation decision.
It may be noted that, in the course of this proceeding in the High Court (as referred to below), evidence was adduced that investigations had been conducted within the Department which confirmed that the cancellation decision had been made by a person having delegated authority to do so.
On 18 July 2018 at 8:25am, the July letter was delivered to the prison at which the applicant was then incarcerated. Under reg 2.55(7)(a) of the regulations, that document was taken to have been received on 19 July 2018. Accordingly, the 28 day period for making representations in support of revocation expired on 16 August 2018.
On 23 September 2018, the applicant wrote to the Department attaching a completed request for revocation of the cancellation decision together with the personal circumstances form which had been provided to him. In his representations, the applicant identified that he was father to four children, who were born between 1996 – 2001, and stated he had been “out of their life too long”. The applicant described his remorse for his offending, a program which he had undertaken to address drug addiction and that he knew no one in New Zealand.
The applicant’s covering letter described the reason why “my papers are late” and suggested that there had been a delay in transmission of the Department’s letter dated 10 July 2018 to him by the gaol administration, which had been compounded by his dealings with “welfare and legal aid” stating that gaol administration had held the papers for a week and that there was a lot more which he wished to say. Indeed, his request for revocation and completed personal circumstances forms were replete with information he wished to convey by way of representations.
The documents prepared by the applicant on 23 September 2018 were date stamped as having been received in Melbourne on 10 October 2018.
On 7 November 2018, the Department notified the applicant that his request for revocation of the cancellation decision was considered to be invalid by reason that it had not been lodged within the stipulated period (November letter). In proceedings that were instituted in the Federal Court, it was submitted that this decision was properly characterised as a non-revocation decision such that the Administrative Appeals Tribunal (Tribunal) had jurisdiction to review it under s 500(1)(ba) of the Act.
As would later emerge, the person who purported to make the decision embodied in the November letter (being a Departmental officer other than the delegate who made the cancellation decision on 10 July 2018), was an officer who did not have the requisite delegated authority to exercise the power conferred by s 501CA(4) of the Act to revoke a cancellation decision. Until the matter progressed to the point of hearing before the Federal Court, it had been erroneously assumed that a delegate of the Minister having the requisite authority to address revocation had done so. Amongst the consequences of the purported making of a decision by a person not having the requisite delegated authority was that there was no ‘decision’ in respect of which the Tribunal had jurisdiction and, in turn, no decision which could be the subject of a competent appeal to the Federal Court.
On 9 November 2018, the applicant, who was then self-represented, requested that the Department reconsider its decision in relation to the invalidity of the request for revocation explaining that he had, on no less than three occasions, sought the assistance of welfare and legal aid, being told each time: “they said they couldn’t help me” and that it was only after being transferred to Villawood detention he had access to a computer so as to complete the application for revocation of the cancellation decision. Within a week, both the applicant’s mother and sister had also written to the Department in support of his request for reconsideration, including by reason of their personal ill health.
On 13 November 2018, the applicant lodged an application with the Tribunal for review of the decision embodied in the November letter.
On 19 November 2018:
a)the Department responded to the applicant’s request, advising him that it had no power to review the decision and was advised he may be able to appeal to the Federal Court;
b)a decision was made by the Tribunal that it had no jurisdiction to hear the application for review and dismissed the application.
The applicant then lodged judicial review proceedings in the Federal Court, contending that the Tribunal had jurisdiction in the matter and that it should perform a review of the merits of his request to revoke the decision to cancel his visa.
Procedural history
On 23 November 2018, the applicant instituted a proceeding in the Federal Court seeking review of the Tribunal’s finding that it lacked jurisdiction to review the delegate’s decision that the Minister had no power to consider the representations lodged more than 28 days after the applicant was deemed to have been notified of the cancellation decision. The applicant’s case was that the Departmental officer who wrote the November letter had been wrong to think that the applicant’s revocation request could not be considered by the Minister, and, in the circumstances, engaged the jurisdiction of the Tribunal’s jurisdiction under par 500(1)(ba) of the Act grounded upon a constructive refusal to revoke the cancellation decision.
At a hearing convened on 16 May 2019, the parties’ attention was drawn to the question whether the Department’s letter dated 7 November 2018 had been written by a person having delegated authority to exercise the power conferred by s501CA(4) to revoke the cancellation decision. While the answer to that question was not immediately apparent, it was agreed that if the person lacked such delegated authority it must follow that there could not have been any constructive refusal to revoke the cancellation decision and the matter was adjourned accordingly.
The Minister is authorised by s 496 of the Act to delegate certain powers. Relevantly, by cl 7(1) of an instrument dated 10 April 2018 entitled Minister – Delegations and Authorisations Instrument No. 4 of 2018 (Immigration and Citizenship Services Group) (MHA No 4. of 2018), the Minister delegated certain powers under the Act. In particular, by Item 155 in Sch 2 of that instrument, the powers conferred by s 501CA were delegated to persons holding, occupying or performing the duties in a position designated as Executive level 1 or above.
On 11 June 2019, the respondent’s solicitor wrote advising the applicant’s solicitor that the relevant departmental officer did not have delegated authority to make a revocation decision. As a consequence, the applicant took steps to discontinue the Federal Court proceeding.
On 17 September 2019, the applicant lodged a proceeding in the High Court, in its original jurisdiction, seeking a writ of mandamus requiring the Minister to consider the applicant’s request for revocation of the cancellation decision and for which an extension of time was necessary. By his amended application, the applicant relied upon a number of grounds which, so far as are now material, included that the applicant’s failure to comply with a 28 day time limit for lodging representations did not deny to the Minister jurisdiction and power to revoke the cancellation decision under s 501CA(4) of the Act. By his response, the Minister contended that mandamus should not be issued as there was no obligation to consider a request for revocation of a cancellation decision which had been made outside of the time required by s 501CA of the Act and reg 2.52(2)(b) for lodging representations.
While the applicant pressed for the proceeding to be determined by a full bench, that application was refused. On 26 March 2020, Edelman J granted an extension of time before remitting[3] the matter to this Court and ordered that the application continue in this Court as if the steps taken in the High Court had been taken in this Court.
[3]Judiciary Act 1901, s 44(1); see also Mokhlis v Minister for Home Affairs [2020] HCA 30, [7]-[20].
Consideration
On 31 July 2020, the applicant filed an application in this Court seeking a writ of mandamus directed to the Minister requiring him to consider his representations in support of revocation of the cancellation decision. The application states, amongst other things that:
The Respondent’s refusal to consider the revocation request involves him failing to act upon correct principle, correctly applied, or amounts to a refusal to perform a public duty, because:
(a)although the applicant’s request was made more than 28 days after the receipt of the purported notification of the cancellation decision (a time-limit applied by r 2.52(2)(b) of the [regulations] and ss 501CA(3)(b) and 501CA(4)(a) of the Act);
(b)the failure to comply with the time-limit does not deny to the Respondent jurisdiction and power to revoke the cancellation decision under s 501CA(4); and
(c)therefore, contrary to the November letter, the Respondent can and must consider the representations made by the applicant in support of revocation of the decision to cancel his visa.
The applicant’s substantive submission was that, properly construed, and despite a failure to lodge representations for revocation of a cancellation decision within the 28 day limit which applied by operation of reg 2.52(2)(b) of the regulations, the power conferred by s 501CA(4) of the Act to consider revoking the decision remained available for exercise. Upon that basis the applicant contended that a writ of mandamus should issue to compel the Minister to consider his representations as received on 23 September 2018, and any further material.
Statutory framework
An object of the Act includes that it is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens and in the advancement of that object, to provide: (a) that a visa be the only source of the right of a non-citizen to so enter or remain; (b) for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act: Act, ss 4(1), 4(2), 4(4).
Section 198 of the Act provides for the removal from Australia of unlawful non-citizens[4] in a variety of circumstances including in respect of a person who has made an application for a substantive visa that has been finally determined: Act, par 198(2)(c)(ii). A step toward the final determination of an entitlement to remain in Australia is where a decision has been made to cancel a visa (cancellation decision).
[4] Act, s 14.
An obligation to remove an unlawful non-citizen from Australia arises where a cancellation decision has been made and, despite an invitation to make representations about revocation of the decision, the non-citizen “has not made representations in accordance with the invitation in the period for making representations has ended”: Act, s 198(2B)(c)(i). A like obligation arises where, following such invitation, the Minister has decided not to revoke the cancellation decision: Act, s 198(2B)(c)(ii).
Provision is made for, amongst other things, the refusal and cancellation of visas by Pt 9 of the Act, Miscellaneous, Div 2, Other, which comprises ss 487-507. Section 500 of the Act authorises the making of certain applications to the Tribunal including for the review of a cancellation decision or non-revocation decision made under ss 501 and 501CA(4) respectively: Act, pars 501(1)(b)-(ba). As noted, in this case, the Federal Court had no jurisdiction to entertain an appeal from the November 2018 ‘decision’ by reason that the person who had signed that item of correspondence did not hold an office within the Department, an incident of which was delegated authority to make a non-revocation decision.
Further, if an application for review is made relating to a decision made under ss 501 or 501CA(4) of the Act, where the decision relates to a person in the migration zone and no decision has been made by the Tribunal within a period of 84 days after the day on which the person was notified of the decision in accordance with s 501G(1), at the end of that period the Tribunal is taken to have made a decision to affirm the decision under review: Act, s 500(6L).
The refusal or cancellation of a visa on character grounds is addressed by s 501 of the Act and, so far as is material to the present application, provides that a visa may be cancelled where the Minister reasonably suspects a person does not pass the character test[5] and the person does not satisfy the Minister that he or she does pass that test: Act, 501(2). Power to refuse to grant or to cancel a visa is also conferred by s 501(3) of the Act where the Minister is satisfied that a person does not pass the character test and, that it is in the national interest to do so. These provisions are augmented by ss 501A-501B of the Act which again confer discretionary but expanded powers of refusal and cancellation.
[5] The ‘Character test’ is provided by s 501(6).
By contrast, s 501(3A) of the Act provides that a visa must be cancelled, in certain circumstances, including where the Minister is satisfied a person has a substantial criminal record[6] and is serving a custodial sentence on a full-time basis for an offence against a law of the Commonwealth, a State or a Territory. Relatedly, s 501A(3) of the Act confers power on the Minister to refuse or cancel a visa where a delegate or the Tribunal has declined to do so.
[6] “Substantial criminal record” is defined by s 501(7).
Section 501C of the Act provides for the revocation of a cancellation decision made under ss 501(3) and 501A(3). Section s 501C is framed in terms which provide for the types of decisions to which it applies and obliges the Minister to give a person written notice of the cancellation decision and particulars of the information which the Minister considers would be the reason, or a part of the reason for making the original decision and specifically relates to that person: Act, s 501C(1)-(3)(a). Subject to a constraint against making representations in certain cases, s 501C further obliges the Minister to invite the person affected by a decision to refuse or cancel a visa to make representations “within the period and in the manner ascertained in accordance with the regulations about revocation of the decision”: Act, par 501C(3)(b). Sub-sections 501C(4)-(5) confer powers, exercisable only by the Minister, to revoke the original decision if representations are made in accordance with the invitation and the person satisfies the Minister that he or she passes the character test. Where the original decision is revoked, it is taken not to have been made: Act, s 501C(7). Attention was drawn to the regulation making power conferred by s 501C(10) to provide that certain persons are not to be entitled to make representations unless they are a detainee.[7] A decision not to exercise the power of revocation conferred by s 501C(4) is not reviewable under Pt 5 or Pt 7 of the Act: Act, s 501C(11).
[7] Act, s 5 defines ‘detainee’.
A key provision in the present application is s 501CA of the Act which provides for the revocation of a cancellation decision that was made under s 501(3A). While s 501CA of the Act contains many provisions which largely mirror those found in s 501C, it does not contain as many provisions as s 501C. Section 501CA reads:
Cancellation of visa – revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as applicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test . . . ; or
(ii) that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
(6)Any detention of the person that occurred during any part of the period:
(a)beginning when the original decision was made; and
(b)ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(7)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
Note: for notification of decisions under subsection (4) not to revoke, see section 501G.
Section 501D confers a regulation making power where, for the purposes of ss 501, 501A and 501B, certain information or material “must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations.” It was said that no such regulation had been promulgated so as to deny consideration by the Minister of information or material lodged outside a stipulated time period.
In general, where a cancellation decision has been made, including under s 501(3A) of the Act, and that decision has not been set aside or revoked, no further visa application may be made by, or on behalf of, the person affected: Act, s 501E(1).
Section 501G provides for the notification of a decision to refuse to grant or cancel a visa (or to not revoke such a decision), and obliges the Minister to give a written notice setting out the decision, specifying the provision under which the decision was made (and its effect) and setting out the reasons for the decision. A failure to comply with s 501G does not affect the validity of the decision: Act, s 501G(4).
Subdivision 2.9.3 of Pt 2 of the regulations also provides for the refusal or cancellation of visas on character grounds. Regulation 2.52 applies to the invitation which must be given to a person to make representations in respect of the revocation of cancellation decisions, including under s 501CA(3)(b) of the Act: reg, 2.52(1). Clause 2.52(2) reads:
The representations must be made:
(a)for a representation under paragraph 501C(3)(b) of the Act – within 7 days after the person is given notice under paragraph 501C(3)(a)(i) of the Act; and
(b) for a representation under paragraph 501CA(3)(b) of the Act – within 28 days after the person is given notice under paragraph 501CA(3)(a) of the Act. (Emphasis added)
It may be observed that reg 2.52(2)(a) imposes a requirement that representations must be made within seven days in the case of a person whose visa application has been refused or visa cancelled in the national interest pursuant to ss 501(3) or 501A(3) of the Act. By contrast, in the case of a cancellation decision made pursuant to s 501(3A) of the Act in respect of a person having a substantial criminal record or committed a sexually based offence and who is serving a full-time sentence of imprisonment, reg 2.52(2)(b) fixes a period of 28 days within which representations for revocation of the decision “must be made.”
Clause 2.52(3) requires that any representations be made in writing and in English. The content of the representations is addressed by cl 2.52(4):
The representations must include the following information:
(a) the full name of the person to whom the representations relate;
(b) the date of birth of that person;
(c) one of the following;
(i) the applicant’s client number;
(ii) the Immigration file number;
(iii)the number of the receipt issued by Immigration when the visa application was made;
(d)if the visa application was made outside of Australia – the name of the Australian mission or immigration office at which the visa application was given to the Minister;
(e)a statement of the reasons on which the person relies to support the representations.
Regulation 2.53 imposes certain requirements that apply to the supply of information or material for s 501D of the Act and reads, in part:
(1) For section 501D of the Act, information or material must be:
(a)in writing; and
(b) received by the [Minister] within 28 days after the person is invited by the [Minister] to submit information or material.
(2)-(4). . .
As noted, s 501D confers a regulation making power for cases arising under ss 501, 501A and 501B of the Act. Regulation 2.53 overlaps with reg 2.52 inasmuch as reg 2.53 prescribes requirements for s 501D of the Act, and thus includes requirements for s 501(3A). By contrast, reg 2.52 applies expressly to representations to be made under ss 501C(3)(b) and 501CA(3)(b). However, the provisions under consideration impose relevantly identical requirements that the representations be in writing and that, in the case of s 501CA(3)(b), they are “received by the [Minister] within 28 days after the person is invited by the [Minister] to submit information or material.” An identical time limit is imposed by reg 2.53.
Applicable principles
The common law and Parliament have long recognised the desirability of persons being able to rely upon the ordinary meaning that is conveyed by the text of a provision, taking into account its context in the Act and the purpose or object underlying the Act under consideration and that an interpretation that would best achieve the purpose of object of an act is to be preferred to other available interpretations.[8]
[8] Cf Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB(1)(a), 15AB(3)(a).
In Project Blue Sky vAustralian Broadcasting Authority, McHugh, Gummow, Hayne and Kirby JJ held:[9]
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[9] (1998) 194 CLR 355, [69]-[71] (footnotes omitted) (Project Blue Sky).
In Alcan (NT) Alumina Pty Ltd v Commission of Territory Revenue,[10] the plurality held that “the task of statutory construction must begin with a consideration of the text itself” and that:
Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
Hayne, Heydon, Crennan and Kiefel JJ endorsed a statement in Carr v Western Australia[11] where Gleeson CJ observed that “Ultimately, it is the text, construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case, that is controlling.”
[10] (2009) 239 CLR 27, [47] (Hayne, Heydon, Crennan and Kiefel JJ) (footnotes omitted) (Alcan).
[11] (2007) 232 CLR 138, [6] (footnotes omitted).
Further, in SZTAL v Minister for Immigration and Border Protection,[12] Kiefel CJ, Nettle and Gordon JJ stated:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.
See also Mondalez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.[13]
[12] (2017) 262 CLR 362, [14].
[13] [2020] HCA 29, [13]-[14] and cases cited.
Submissions
The applicant submitted that properly construed, where a person had not made representations in accordance with an invitation given pursuant to s 501CA(3)(b), the power conferred by s 501CA(4) of the Act to revoke a cancellation decision was not spent but remained available to be exercised such that the Minister remained subject to a duty, enforceable by mandamus, to consider representations made in support of the revocation of the original decision. The applicant also framed the issue from a different perspective, being whether the 28 day time limit prescribed by reg 2.52(2)(b) of the regulations meant that the Minister was not permitted to consider a request for revocation of the original cancellation decision, if it had been made outside that period. The alternate framing of the submission may be understood as recognising that reg 2.52(2)(b) of the regulations supplied certain imperative requirements for the invitation which the Minister must give to a person pursuant to s 501CA(3)(b) as soon as was reasonably practicable after a cancellation decision had been made under s 501(3A).
The applicant contended that the combined effect of ss 501CA(3)(b) and 501CA(4), coupled with reg 2.52(2)(b) of the regulations, had the result that compliance with the 28 day time limit was not a “mandatory” pre-condition to the existence of jurisdiction and power to revoke a cancellation decision under s 501CA(4). This conclusion was said to be supported by certain contextual and purposive considerations, including the language used in related provisions and the adverse consequences which flowed from the adoption of a narrow construction of s 501CA(4). Further, it was submitted that the time limit was a “directory” procedural requirement. While accepting that compliance with the 28 day time limit was a lawful requirement, it was said that a failure to comply with it did not, of itself, deny the existence of the power under s 501CA(4).
The applicant also accepted that while it was a logical and sensible enough starting point to treat ‘must’ as used in reg 2.52(2) as bearing its ordinary imperative meaning, a more nuanced approach to the proper construction of the provision was required which, as was submitted, produced the result that the 28 day time limit should not be construed as a precondition to the exercise of power or its availability after the expiry of that period where no representations had been lodged within time. In this context, emphasis was placed upon the collective effect of the applicant’s family ties to Australia, the absence of family in New Zealand and the operative effect of a cancellation decision which prevented re-entry into Australia, at least for a number of years.
The Minister contended that, where a person given an invitation pursuant to s 501CA(3)(b) of the Act had not made representations within the prescribed 28 day period, there was no power to revoke a person’s automatic visa cancellation. The Minister further submitted that ss 501CA(3) and 501CA(4) of the Act, read with reg 2.52(2)(b) of the regulations, should be given their natural and ordinary meaning, such that where a person made representations after the 28-day period identified in the invitation had expired, the power of the Minister to revoke the visa cancellation under s 501CA(4) could not be enlivened.
Counsel for the Minister further submitted that no public duty to consider exercising the power conferred by s 501CA(4) arose from the making of representations outside of the 28 day time limit as fixed by the invitation to do so.
Resolution
For the reasons which follow I am satisfied that, properly construed, the power conferred by s 501CA(4) is only available for exercise where a person has made representations for the revocation of a cancellation decision within the period and in the manner as ascertained in accordance with reg 2.52(2)(b); that is, within 28 days after they are deemed to have been given notice under par 501CA(3)(a) of the Act of the decision made under s 501(3A) to cancel their visa. Such a construction gives the words used in the subject provisions their ordinary meaning and is consistent with the legislative purposes of the Act and, in particular, with those provisions which govern the refusal to grant and cancel visas, including the scheme by which certain persons are afforded rights to make representations for the Minister’s consideration in exercise of the limited power to revoke a cancellation decision.
A number of preliminary observations may be made.
First, by the time the matter had devolved to this Court, an invalidity based challenge to reg 2.52 had fallen away, as had other challenges and about which I was told this Court need not be concerned. In the result, the only question remaining for determination was the proper construction of s 501CA(4) read with s 501CA(3)(b) and reg 2.52(2)(b).
Secondly, it was not in issue that, for the purposes of the character test, the applicant had a substantial criminal record and was serving a sentence of imprisonment on a full time basis of the requisite kind.[14]
[14] Act, s 501(3A)(b), 501(7)(c).
Thirdly, as this Court is bound by the holding in BDS20, it is bound[15] to hold that upon expiry of the 28 day time limit for the making of representations to the Minister for revocation of the decision to cancel the visa, the power conferred by s 501CA(4) was spent and could not be revived and further, that the Minister lacked jurisdiction to make any decision to consider revocation of the decision to cancel the visa.[16]
[15]Viro v R (1978) 141 CLR 88.
[16] [2020] FCA 1176, [52]-[53], (Stewart J).
Fourthly, in answer to a submission by the Minister, the applicant denied he was contending for a construction that recognised, as an incident of the power conferred by s 501CA(4), an implied power to exercise a discretion after expiry of the applicable 28 day time limit. As confirmed in discussion with counsel, the applicant eschewed any suggestion of an implied power but maintained that on the proper construction of s 501CA(4), the Minister retained a power and duty to consider representations that had been lodged outside of that time limit. I note that in BDS20, Stewart J observed that no contention based upon the recognition of an implied power had been made in that appeal and that his Honour could find no basis for doing so.[17]
[17] [2020] FCA 1176, [50]; compare Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407, [52] (Finkelstein J), [55] (Dowsett J agreeing).
Objects of the Act
Despite the way in which the submissions were presented, it is necessary to start with the Act, consider the text in question, doing so in the context of the Act as a whole and, in particular, as informed by such contextual indications as may be drawn from provisions surrounding s 501CA(4).[18]
[18] See e.g., Mondalez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29, [14] and cases cited.
In determining the objects and purpose of an act, regard must be had to “the language of the relevant provision and the scope and object of the whole statute.”[19] The stated object of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. The advancement of that object is to provide that a visa be the only source of the right of a non-citizen to so enter or remain in, and for the removal or deportation from, Australia, of non-citizens whose presence in Australia is not permitted by the Act.
[19]Project Blue Sky (1998) 194 CLR 355, [93].
On settled principles, a construction of s 501CA(4) which was not consistent with the objects of the Act must ordinarily be rejected.
Textual considerations
Examining the text of s 501CA(4) requires that it be considered, from the beginning, in the context of the cancellation regime provided by Pt 9 of the Act, and in particular, ss 501, 501A and 501CA(4). I consider that there is no basis in the text, structure or purpose of the Act for concluding that the Parliament intended the expression “the invitation” in s 501CA(4) of the Act to mean or refer to anything other than that which must be made by the Minister. By par 501CA(3)(b) of the Act, the Minister must invite the person “to make representations within the period and in the manner ascertained in accordance with” reg 2.52(2)(b).[20] It is important that ss 501CA(3) and 501CA(4) are construed consistently, as to do so will promote certainty. It would enhance the result that the reciprocal obligations and rights as expressed in the text of those provisions are understood in the way in which such text would be understood in ordinary discourse. And contrary to the applicant’s submissions respecting the normative effect for which he contended, if that text was given the meaning as understood in ordinary discourse, agents and others advising persons the subject of a cancellation will be able to furnish advice with equal levels of certainty.
[20]BDS20, [2020] FCA 1176, [46].
The obligation in s 501CA(3) is expressed in terms which require the Minister to act as soon as is practicable by informing a person of the cancellation decision, providing the “relevant information” and inviting the person to make representations, within the period and in the manner ascertained in accordance with the regulations, about revocation of the decision. In turn, s 501CA(4) confers a right in a person to consideration of their representations for revocation of the cancellation decision if the representations are made in accordance with the invitation and the Minister is satisfied that the person passes the character test or that there is another reason why the cancellation decision should be revoked. The text of those provisions can be given a symmetrical construction by requiring that the Minister must invite the person affected by a cancellation decision to make representations within the period and in the manner ascertained in accordance with the regulations and, in turn, that the Minister is obliged to consider revoking the cancellation decision if representations are made in accordance with that invitation.
Sub-section 501CA(3) requires the Minister, after cancellation, to give notice and particulars of information relied upon, and to invite the person to make representations about revocation of the original decision “within the period and in the manner ascertained in accordance with the regulations” (s 501CA(3)(b)). The requirement to give that invitation is expressed in imperative terms: as soon as practicable after making the cancellation decision, “the Minister must” . . . “invite the person to make representations.” Giving the term ‘invite’ its ordinary meaning, the Minister must issue a formal request to the person affected by the cancellation decision. From this perspective, it can be seen that the time within which a person is to be allowed to make representations arises in the context that the Minister must issue the invitation as soon as is reasonably practicable after the cancellation decision is made.
The nature and content of that invitation is then controlled in part by the requirement in s 501CA(3) that the Minister must invite the person affected “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.” For the purpose of ascertaining the period and the manner in which the invitation must be made by the Minister, reg 2.52(2)(b) of the regulations provides that the “representations must be made within 28 days after the person is given the notice and the particulars of relevant information”.[21] There is no express power in the regulations to waive or extend that 28 day period.[22]
[21] [2020] FCA 1176, [40].
[22] BDS20, [2020] FCA 1176, [41]-[43]; see also Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313, [67] (Katzmann J).
In ascertaining the commencement time of this 28 day period, reg 2.55 applies to the giving of a document relating to a decision to cancel a visa.[23] By reg 2.55(7)(a) of the regulations, in this case, the applicant was taken to have received the cancellation decision seven working days after the date of the document.
[23] Regulations, reg 2.55(1)(b)(i). One of the ways that a document relating to the cancellation of a visa may be given to a person is by despatching it prepaid post to the person’s last known address: Regulations, reg 2.55(1)(c), 2.55(3)(c).
Sub-section 501CA(4) of the Act confers power on the Minister to revoke a cancellation decision that has been made under s 501(3A). For the power conferred by s 501CA(4) to be enlivened, two criteria must be satisfied. The power of revocation is only enlivened ‘if’ both criteria are met. First is that the person has made representations in accordance with the invitation: Act, par 501CA(4)(a). Secondly, that the Minister is satisfied: (i) that the person passes the character test; or (ii) that there is another reason why the original decision should be revoked: Act, par 501CA(4)(b). In BDS20, Stewart J held that:[24]
The criterion for the exercise of the Minister’s power to revoke a visa cancellation expressed in s 501CA(4)(a) of the Act, i.e. that the person makes representations in accordance with the invitation, is an objective jurisdictional fact: Ali at [40] per Collier, Reeves and Derrington JJ. That is to say, “the satisfaction of [the criterion] enlivens the exercise of the statutory power or discretion in question” and “if the criterion be not satisfied then the decision purportedly made an exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker”: Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 at [43] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ.
See and compare Forster v Minister for Immigration and Border Protection;[25] Roach v Minister for Immigration and Border Protection.[26]
[24] [2020] FCA 1176, [40]; see also at [30]-[31].
[25] (2018) 264 FCR 58, [6]-[8], [11] (Perram J).
[26] [2016] FCA 750.
It is useful to consider s 501CA(4) of the Act in its wider context.
Sections 501A-501H were inserted into the Act in 2014.[27] Section 501CA provided what was described by counsel for the applicant as a new regime whereby a person serving a sentence of imprisonment for an offence which constituted a substantial criminal record or a conviction for a sexual offence upon a child was subject, without rights of natural justice, to automatic cancellation coupled with a limited opportunity to make representations for revocation of the decision to cancel a visa.
[27] By s 2(1), Table cl. 2 and Item 8 of Sch 1 of the Migration Amendment (Character and General Visa Cancellation) Act 2014 and became operative on 11 December 2014.
While I was taken to the Parliamentary debate which addressed the proposed enactment of s 501CA, this was done only for the purposes of demonstrating and confirming[28] that it provided no guidance as to the intended meaning of ‘must’ where used in s 501CA(3). It may be noted that the mandatory cancellation of visas was to operate in respect of non-citizens who were serving a full-time sentence of imprisonment and who, objectively, did not pass the character test having regard to the nature of their offending and that the sentence entailed a term of imprisonment. The bill was said to demonstrate a commitment to ensuring that non-citizens did not pose a risk to the Australian community.[29]
[28]Acts Interpretation Act 1901 (Cth), ss 15AB(1)(a), 15AB(2)(f), 15AB(3)(a).
[29] Commonwealth, Parliamentary Debates, House of Representatives, 24 Sept 2014, pp. 10327-10328.
The array of provisions considered above provide that the Minister may refuse to grant or may cancel a visa in defined circumstances which include that a person does not pass a character test or that the Minister considers it in the national interest to do so. As observed, while certain of those provisions confer discretionary power to refuse to grant or cancel a visa, a distinction is also drawn between cases where natural justice does, and those where it does not, apply to the matter.
Contrastingly, in cases where a person has a substantial criminal record (as defined) or has been convicted of a sexual offence against a child and is serving a full-time sentence of imprisonment in a custodial institution, in the first instance, the Act does not confer a power in the Minister to refuse to grant or cancel the prisoner’s visa. Instead, s 501(3A) of the Act provides for the mandatory, or automatic, cancellation of visas of such persons. Natural justice does not apply to such decisions. It was accepted, correctly, that in enacting s 501CA, the legislature must be taken to have recognised that the provision would operate in respect of persons serving a full-time term of imprisonment.
In Roach v Minister for Immigration and Border Protection[30], Perry J accepted that, for the purposes of s 501C, the Minister was obliged to revoke a decision once satisfied that the character test was passed such that no ‘residual’ discretion was available. Again, in Marzano v Minister for Immigration and Border Protection[31] Collier J with whom Logan and Murphy JJ agreed, held that properly construed s 501CA(4) conferred no residual discretion, such that once the applicant for revocation had satisfied the Minister that the factors favoured revocation of the cancellation decision, the Minister was obliged to act on that view. In the result, there was no residual discretion to refuse to revoke the decision. Applied to the present case, this reasoning was said to support the conclusion that if there was no residual discretion to refuse revocation, consistently with that construction of s 501CA(4) there could be no residual discretion to consider representations made outside the 28 day time limit that applied to par 501CA(4)(a).
[30] [2016] FCA 750, [29], [91]-[92].
[31] (2017) 250 FCR 548, [30]-[31] applying Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, [38]-[39] (North ACJ).
There was force in the Minister’s submissions that there was no warrant to read ‘if’ in the chapeau as having a different operation depending upon whether the question was directed to whether the criteria in par 501CA(4)(a), 501CA(b)(i) or (ii) were in contest. If compliance with the requirement to satisfy the Minister that a person passed the character test (or had some other reason why the cancellation decision should be revoked was necessary), why should compliance with the requirement to make representations in the period and in the manner prescribed by reg 2.52 be given some different level of importance?
In my view, the present application largely turns upon the meaning of par 501CA(4)(a). The invitation referred to in that provision can only mean the invitation referred to in par 501CA(b) of the Act; that is, an invitation made within the period and in the manner ascertained in accordance with reg 2.52. From this it must follow that the power to consider revoking a cancellation decision is only available for exercise if a person has made representations in accordance with the invitation.
The ordinary and natural meaning of s 501CA(4) is that the Minister only has power to revoke an original decision if the conditions which it contains have been observed. To adapt the principles stated in Alcan,[32] a court will not construe a provision in a way that departs from its natural and ordinary meaning unless it is plain that Parliament intended it to have some different meaning. It is anything but plain that the Parliament intended s 501CA(4) read with s 501CA(3)(b) and reg 2.52(2)(b), to mean that the Minister may revoke a cancellation decision where the conditions which it has imposed are not observed. In this case, where the applicant had not made representations to the Minister within the period fixed by par 2.52(2)(b) of the regulations, the pre-condition imposed by par 501CA(4)(a) had not been satisfied.
[32] (2009) 239 CLR 27, [4], [47]
It is also inherently improbable that, in using the expressions “invite” and “invitation” in those provisions, the Parliament intended to achieve a result whereby the Minister was not constrained[33] from considering representations not made within the period or in the manner prescribed by reg 2.52(2)(b). In my view, giving s 501CA(4) its natural and ordinary meaning, does not lead to an absurd result.[34] Consistently with the requirement to give provisions of an act a harmonious construction, I construe ss 501CA(3)(b) and 501CA(4)(a) as achieving an outcome where the Minister must invite a person to make representations within the period and in the manner prescribed by reg 2.52(2) and at the same time only has power to revoke the original decision if a person makes representations in accordance with that invitation. The power conferred on the Minister by s 501CA(4) is not enlivened until a valid invitation has been given. It continues in existence thereafter for 28 days.
[33]CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, [88].
[34] Alcan, (2009) 239 CLR 27, [45] citing Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297.
Contextual considerations
While invited to address the text of s 501CA(4) and the context in which it should be construed, some considerable time was spent addressing the background of the matter and in explaining that the 28 day limit which applied to the making of representations in support of the revocation of a cancellation decision had significant implications for the recipients of a cancellation notice, particularly in circumstances where many of them received the notice at a time when they were incarcerated and thus without resort to lawyers having the types of specialist experience which would be required to understand the immediacy with which the recipient of a cancellation notice must act. There was force in those submissions.
The applicant’s contention was said to be more nuanced than simply construing ‘must’ as employed in reg 2.52(2) in a purposive sense. The applicant identified a number of features in surrounding provisions of the Act which, it was said, militated against a literal construction of the requirement in reg 2.52(2)(b) of the regulations that representations made pursuant to par 501CA(3)(b) of the Act ‘must’ be made within 28 days after the person was given the written notice and invitation in accordance with s 501CA(3)(a)-(b) of the Act. The applicant identified the following contextual and purposive features which, it was said, suggested that a broad interpretation was to be preferred.
First, it was said that the power under s 501CA(4) was directed to permitting a person to have their visa reinstated where the Minister was satisfied that a person passed the character test or, if not, there was another reason why the decision to cancel their visa should be revoked. It was submitted to be unlikely in the extreme that Parliament intended to deny the Minister power to reinstate a visa if satisfied of either of these matters, even though the individual concerned had not complied with s 501CA(4)(a). By way of illustration, attention was drawn to the situation where a person’s conviction or sentence had been overturned on appeal, or could show that the Minister had relied upon an erroneous record of their criminal history. It was submitted that had it been the intention of Parliament to deny to the Minister power to consider a representation made outside the 28 day period, it could have said so, with clarity and precision. The way in which this submission was framed looked past the text of s 501CA(4) – which is focussed on conferring power to revoking a decision if two conditions are satisfied – to an ultimate objective whereby a person might have their visa reinstated.
In this respect, I accept the Minister’s submission that a cancellation decision made under s 501(3A) which is affected by jurisdictional error, and in respect of which representations are not made within time, could be challenged on orthodox judicial review grounds. By par 500(4A)(c), a decision of a delegate of the Minister made under s 501(3A) to cancel a visa is not reviewable under s 500, or under Part 5 or 7 of the Act. It follows that such a decision is not a primary decision for the purposes of s 476 of the Act and so may be challenged in this Court.[35]
[35] See also s 476A(1)(c) of the Act for decisions made by the Minister personally and the jurisdiction of the Federal Court in respect of them.
While I do not consider the point to be of particular assistance to resolving a question of construction, some contextual support against the unlikelihood of the Parliament intending to deny power was that even if a visa cancellation had been notified soon after conviction, it would be expected that a person intending to make representations would advise of the fact that they had appealed, or intended to appeal, a conviction or sentence on which the cancellation was based as part of his or her initial representations. As was observed, while the Minister’s invitation must be to make representations within the 28 day time limit, this does not foreclose the making of further submissions. In the example that was postulated by the Minister, the final consideration of all representations may be deferred until the result of an appeal had been known.[36]
[36] Cf. Williams v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 814, [11]-[12], [71], [84] (Wheelahan J).
In the face of the express terms employed in ss 501CA(3)(b), 501CA(4)(a) and reg 2.52, I cannot speculate whether it was unlikely, in the extreme or at all, that Parliament intended to deny the Minister power to considered representations made outside the 28 day time limit operative with respect to a cancellation decision made under s 501(3A). The submission effectively sought to fuse the legislative power of the Parliament in enacting ss 501CA, with the later promulgation of the regulations made by a different body; namely, the Governor-General. Perhaps the most that can be said is that the Parliament intended that the Minister must invite a person who was the subject of a cancellation decision and that the invitation to make representations must be made within the time and in the manner to be ascertained by the regulations. It is in the regulations, not the Act, that time limits were imposed by reg 2.52 fixing the time within which a person must make representations. Those regulations impose a 7 day and 28 day limit respectively within which a person affected by a decision to cancel a visa (i.e. in the national interest or in respect of a crime of the relevant kind), must make representations against revocation. Such time limits are to be gauged in the context of s 501CA(3) which obliges the Minister, as soon as is practicable, to invite the making of such representations.
Secondly, it was said that in neighbouring provisions the Parliament had expressed with particular clarity, its intention concerning similar subject matter. The following examples were given:
a)s 501C(10), referring to a power to make regulations which denied a person the right to make a representation unless a detainee;
b)s 501D, referring to a power to make regulations which provided that the Minister must not consider any information or material unless the information or material was submitted within the period, and in the manner, ascertained in accordance with the regulations;
c)s 500(6L), where the Tribunals failure to make a decision on a revocation matter within the 84 day time limit, meant that the delegate’s decision was taken to have been affirmed.
As to this, each of ss 501C(10) and 501D are regulation-making powers. Neither provision in terms imposes a restriction on the making or consideration of representations. Section 501C is not concerned with the automatic cancellation of visas, but relates to cancellation on the quite distinct basis of character test and national interest. Admittedly, s 501D confers a regulation making power for the purposes of each of ss 501, 501A and 501B and thus encompasses a cancellation decision made under s 501(3A). But s 501D is confined to representations relating to the character test and does not extend to any other reason why a cancellation decision might be revoked under par 501CA(4)(b)(ii). The fact that s 501D confers a power to make regulations which would proscribe the consideration of information or material not submitted within time does not provide a sufficient basis, alone or in combination with the other factors relied upon, to conclude that s 501CA(4) should not be construed according to its ordinary and natural meaning.
I accept the Minister’s submission that the ‘84-day rule’ provided by s 500(6L) is also different. The deeming provision by which a decision under review is taken to be affirmed unless the Tribunal has made a decision within 84 days applies where the jurisdiction of the Tribunal has otherwise been validly engaged. By contrast, in the present case it is precisely in contest whether there exists a jurisdiction or power to consider representations made outside the 28 day time limit. I do not agree that the supposed clarity with which ss 501C(10), 501D and 500(6L) are stated indicates a legislative intent that the power conferred by s 501CA(4) should continue in existence where the 28 day time limit for making representations has not been observed.
Thirdly, it was said that the provisions operated where a person was imprisoned and their capacity to engage in correspondence with the Department was substantially controlled by others. As observed above, it was properly acknowledged that the Parliament enacted ss 501A-501H well knowing that s 501CA made separate provision for the revocation of decisions in respect of those persons who were serving a sentence of imprisonment on a full-time basis in a custodial institution for particular kinds of offence: Act, s 501(3A). This is confirmed by the Parliamentary debate to which attention was drawn.
Fourthly, it was said that there was no apparent urgency in making revocation decisions; the affected individual would either be in prison or in detention. I reject this submission in light of the imperative terms of s 501CA(3). Sections 501CA(3) and 501CA(4) are given a symmetrical operation. Each provision proceeds from a premise that the Parliament intended the visas of particular persons should be automatically cancelled and that there should be no natural justice. Those matters in themselves underscore the territory in which s 501(3A) together with ss 501CA(3) and 501CA(4), are intended to operate.
Specifically, once the automatic cancellation decision has been made the Minister must, as soon as is practicable, give the affected person written notice of the cancellation decision and particulars of the relevant information. The Minister must also – as soon as is practicable – invite the person to make representations within the 28 day period and in the manner defined by reg 2.52. Relatedly, the removal requirements in s 198(2B) impose mirror obligations to effect removal as soon as is reasonably practicable, where a person has not made representations about revocation in accordance with the invitation and the period for making representations has ended. The importance of expedition, both in the making of administrative decision-making and determinations as to their validity, is well-entrenched.[37] Viewed collectively, those matters disclose a legislative intent that the Minister, and in turn, the person served with a cancellation notice are to act with a particular promptitude and thus, that the person responsible for the making of a revocation decision is to treat the exercise of the power conferred by s 501CA(4) as a matter of immediate importance. I also accept that the fact that a person is likely to be in detention provides a good reason for having their immigration status resolved without delay.
[37] Fernando v Minister for Immigration and Multicultural Affairs (2000) 97 FCR 407 (Fernando), [48] (Finkelstein J), [55] (Dowsett J agreeing).
Other matters
The applicant did not submit that a failure to comply with the time limit was irrelevant, or that the time limit performed no useful work. It was said that the time limit would still have ‘normative’ effects, especially for migration agents or solicitors acting for an affected individual. It was said that the Minister could still take into account any failure to comply with the time limit, especially where there is substantial delay, as militating against the revocation of the cancellation decision and further, that in cases of excessive delay, such delay alone may justify refusal to revoke a cancellation decision. In my view, those submissions paid insufficient attention to the objects of the Act and in particular the text of s 501(3A), 501CA(3) and 501CA(4) read with reg 2.52.
The applicant also identified a number of additional factors which were said to tend against a narrow construction which was said to be the unjust and unlikely consequences resulting from a ‘mandatory’ construction.
First, the provisions at issue were said to apply to all visas but had particular impact where a protection visa has been cancelled. It was submitted that the existence of protection obligations would not affect the duty to remove such a person under ss 197C and 198 of the Act and that persons would be liable to being returned immediately to the place where they had a well-founded fear of persecution, contrary to Australia’s international obligations. As to this, the present case does not arise in the postulated circumstance. If questions of invalidity arose in that circumstance they do not arise here. Further, I accept the Minister’s submission that the perceived ‘unfairness’ of time limits is not a ground for implying a power to extend or waive them.[38] Insofar as some ameliorating effect was sought, attention was drawn to the Minister’s broad non-compellable powers to allow the former holder of a protection visa which had been cancelled to reapply for a protection visa, or to grant a visa without the need for further application.[39]
[38] Fernando (2000) 97 FCR 407, [19], [22] (Heerey J), [55] (Dowsett J agreeing); Rail Corporation NSW v Brown (2012) 82 NSWLR 318, [57].
[39] Act, ss 48A(1B), 48B and 195A.
Secondly, the applicant reiterated that cancellation under s 501(3A) occurred where a person was serving a sentence of imprisonment and had a substantial criminal record (as defined), or had been found guilty of a sexually based offence against a child. It was submitted that if that person subsequently had their conviction quashed and an acquittal was entered, or their sentence reduced to below the “substantial criminal record” threshold, but was one day late in making revocation submissions, the person would have no right to ask the Minister to consider revocation, even though the result might be that they no longer failed the character test and so met s 501CA(4)(b)(i). As noted, the very text of ss 501(3A) and 501CA recognise that those facts exist. So too, the conclusions at [100] respecting time limits are equally applicable.
Thirdly, it was said that where a person made some revocation representations within time, that person would be precluded from making any further revocation representations after the expiry of the time limit, even if such further representations had been sought by the Minister. Fourthly, it was also said that where the Minister came into possession of additional adverse material after the initial invitation, the Minister would be precluded from considering any further representations from the applicant on that additional adverse material, including upon a further invitation to do so from the Minister. I reject those submissions.The Minister accepted, correctly, that provided a person had made representations in accordance with the invitation, further supplementary representations could be made and considered at any time up to the time of decision.[40] Further representations may be made in any de novo review conducted by the Tribunal.
[40] Cf. Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, [11] (Perram J); see also Williams v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 814, [12] (Wheelahan J).
Fifthly, it was also said that a person who omits to provide in their representation a relatively minor detail, for example, their full name, or their date of birth, or their relevant file or visa application receipt number, lost the opportunity to have their representation considered as this information “must” be included in the representation: reg 2.52(4). I agree in the Minister’s submission that the proper construction of s 501CA(4) (being an exercise in discerning Parliament’s objective intention) could not be construed by reference to the subordinate regulations (as made by a different body, namely, the Governor-General). Questions of substantial compliance are addressed by other means.[41]
[41] Acts Interpretation Act, s 25C.
Invalidity of late representations
One limb of the applicant’s submissions was that compliance with the requirement to make representations within the period prescribed by reg 2.52 was not a mandatory, but rather a directory, requirement such that failure to do so did not invalidate the act of making representations out of time. Reliance was placed upon Project Blue Sky.[42]
[42] (1998) 194 CLR 355, [91]-[93].
The Minister submitted that this mode of characterisation was apt to conceal the task of statutory construction which is required.
To employ the distinction between mandatory and directory requirements in statutory construction is to adopt a distinction that has outlived its usefulness.[43] In Fernando v Minister for Immigration and Multicultural Affairs,[44] Finkelstein J held that “the distinction deflected attention from the real issue at hand, that issue being whether an act done in breach of a statutory provision is invalid or not.” Nonetheless, the distinction continues to be a convenient signpost to the issue.
[43] Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, [20] (Gleeson CJ); see also Pearce & Geddes, Statutory Interpretation in Australia 9th Ed (2019), [11.1], [11.5]; Craies on Legislation 11th Ed, (2017) [12.6.4A]; Bennion on Statutory Interpretation 7th Ed (2017), [7.3].
[44] (2000) 97 FCR 407, [43] (Finkelstein J), [55] (Dowsett J agreeing); R v Soneji [2005] UKHL 49, [23] (Lord Steyn).
To describe a provision as being mandatory or directory is to express a conclusion without undertaking the process of construction that is necessary to determine whether the impugned act should be regarded as invalid having regard to the purpose of the legislation. It has also been recognised that to characterise a requirement as being mandatory or directory is only to express the result of the process of construction such that the classification is the end of the inquiry, not the beginning.[45] In Project Blue Sky[46], the plurality considered that a better formulation of the test was:
. . . to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.
[45] Rail Corporation New South Wales v Brown (2012) 82 NSWLR 318, [41] (Bathurst CJ, ^ JJ agreeing); see also Project Blue Sky (1998) 194 CLR 355, [93].
[46] (1998) 194 CLR 355, [93]; see also Craies on Legislation, at [12.6.3] citing Howard v Bonnington (1877) 2 PD 203, 211.
Earlier, the plurality had accepted that a finding of purpose or no purpose may often reflect a contestable judgment and that no decisive rule was available, let alone a ranking of relevant factors or categories that would provide guidance on the issue.[47]
[47] (1998) 194 CLR 355, [91].
Nonetheless, the mandatory and directory distinction was employed in the present case to support a conclusion that where a person made representations outside of the 28 day time limit, the Minister retained power to consider those representations compellable by mandamus. Embedded in this submission was an assertion that, as the power under s 501CA(4) remaining available for exercise, a duty to exercise it was amenable to relief by way of mandamus. Conversely, it was implicit that if the power was not capable of being enlivened outside of the time limit, no public duty could be identified as a basis for such relief.
The applicant advanced this nuanced submission on the basis that if the Minister did proceed to consider representations that had been made out of time and then revoked or declined to revoke the cancellation decision, the act of having done so would not be invalid. Irrespective of the conclusory aspects of characterisation, the dispositive question was whether s 501CA(4), properly construed, conferred a power that was spent or remained open to be exercised after the time limit for receipt of representations had expired. The fact that the act of lodging submissions outside of the stipulated time limit was unlawful merely provided the context in which the question of construction was to be resolved. It is by reference to the purpose of the Act and in particular s 501CA(4) that the question of validity is to be answered. And the answer is supplied by asking whether it was a purpose of the Act that lodging representations outside of the 28 day limit (and thus in breach of ss 501CA(3)(4) read with reg 2.52(2)(b)), should be treated as invalid.
In Fernando,[48] Heerey J observed that in Project Blue Sky the plurality had identified a factor, which favoured the conclusion that the Australian Broadcasting Authority’s determination in the exercise of its functions under the applicable legislation of an Australian Content Standard was not to be regarded as invalid, was the real inconvenience to persons who had acted in reliance on the conduct in question. A further influential consideration as identified by Finkelstein J was whether the provision under consideration directed that the power or function was to be carried out in accordance with matters of policy.[49]
[48] (2000) 97 FCR 407, [30] (Dowsett J agreeing).
[49] (1998) 194 CLR 355, [95], [97]; cf Forrest & Forrest Pty Ltd v Wilson (2017) 262 CLR 510, [62].
In Rail Corporation New South Wales v Brown,[50] Bathhurst CJ, when evaluating whether failure to comply with a time limit for instituting an appeal invalidated the appeal, crystallised the issue as being whether compliance with the time limit was a pre-condition to a valid appeal. The Chief Justice held that it was a pre-condition, reasoning that if the provision had no effect, an appeal could be validly instituted whenever it was lodged. It was conceded that to construe the provision as being valid on this basis would render the provision meaningless.[51] Beazley and Basten JJA agreed.
[50] (2012) 82 NSWLR 318, [41], [57] (Bathurst CJ).
[51] (2012) 82 NSWLR 318, [42].
The question of inconvenience and its consequences was also addressed in Forrest & Forrest Pty Ltd v Wilson,[52] where the plurality held:
In addition, any inconvenience suffered by treating the requirements of the Act as conditions precedent to the exercise of the Minister's power would enure only to those with some responsibility for the non‑observance, whereas (as will be explained) the contrary view would disadvantage both the public interest and individuals who were within the protection of the Act.
[52] (2017) 262 CLR 510 at 527 [63] (Kiefel CJ, Bell, Gageler, and Keane JJ), see [102], (Nettle J diss).
Contextually, this case may be distinguished from Project Blue Sky[53] where the High Court preserved the validity of the subject determination. First, in that appeal, the administrative decision had in fact already been made. Here, the Minister has not exercised the power conferred by s 501CA(4) of the Act and his delegate has expressly declined to do so. Secondly, s 501CA(4) does not direct that the Minister’s power of revocation is to be carried out in accordance with policy directives. Rather, it confines the exercise of power to cases in which both of the criteria in pars 501(4)(a)-(b)(i) or (ii) are satisfied. Thirdly, s 501CA(4) is not expressed in indeterminate terms but sets criteria that can easily be identified and applied. Fourthly, responsibility for non-compliance in making representations would enure to the person the subject of the cancellation decision if s 501CA(4) was given its ordinary meaning. Fifthly, regard must be had to the objects of the Act and the public interest and those persons whom it serves to protect.
[53] (1998) 194 CLR 355.
To adapt Bathurst CJ’s reasoning in Rail Corporation, s 501CA(4) does not mandate or direct anything. Instead it confers power to revoke if (and only if) the preconditions that it contains are satisfied. To the contrary, it is s 501CA(3) which mandates how, and the manner in which, the Minister must act once a cancellation decision has been made.
In Project Blue Sky, following discussion of the distinction between acts done in breach of an ‘essential preliminary to the exercise of a statutory power’ and acts done in breach of a ‘procedural condition’, the plurality also observed that holding an act to be invalid or valid was:[54]
. . . likely to be of significance only in respect of actions already carried out by, or done in reliance on the conduct of, the ABA. Although an act done in contravention of s 160 is not invalid, it is a breach of the Act and therefore unlawful. (Emphasis added)
[54]Project Blue Sky (1998) 194 CLR 355, [100].
I agree that in this case, the Minister has not yet ‘carried out’ anything. As counsel for the Minister submitted, it was the very failure to carry out consideration of the revocation request, in the face of expiry of the time limit, about which complaint was made. The applicant’s unlawful act, constituted by the making of representations out of time, despite the terms of an invitation which stipulated that they be made within 28 days, is the act which was sought to be saved from the suggested invalidity.
The applicant’s characterisation of the time limit as a directory procedural requirement must amount to an acceptance that a revocation decision made in spite of non-observance of the time limit for representations would be unlawful, even if not invalid. Support for that conclusion may be drawn from the statement in Project Blue Sky set out above. In oral submissions, the applicant also sought to disclaim a conclusion of unlawfulness as attaching to a decision by the Minister to consider representations made out of time.
In BDS20,[55] the submission made on behalf of the Minister, and accepted, was that the Act and in particular, s 501CA(4), disclosed a legislative purpose that the making of submissions outside of the 28 day time limit should be treated as invalid. Stewart J identified the importance of certainty as favouring a conclusion that the time limit should be treated as inflexible and that a contrary conclusion would introduce uncertainty into the Act.[56] His Honour accepted that the question of whether the representations lodged out of time were to be characterised as invalid was to be determined by reference to whether it was a purpose of the Act that an act done in breach of the applicable provision should be invalid.[57]
[55] [2020] FCA 1176, [31], [47].
[56] [2020] FCA 1176, [48]-[50], [52].
[57] [2020] FCA 1176, [32], [47], [50] applying Project Blue Sky (1998) 194 CLR 355, [93].
The present case is also to be distinguished from those in which the validity of the act turns on substantial compliance with a procedural requirement.[58]
[58] Cf Acts Interpretation Act, s 25C; Bennion on Statutory Interpretation 7th Ed (2017), [7.3] at p.221; Project Blue Sky (1998) 194 CLR 355, [93]; MZAIC v Minister for Immigration and Border Protection [2016] FCAFC 25, [22].
It should be recognised that the applicant’s right to make representations was circumscribed by the requirement for those representations to be made within the time and in the manner to be ascertained in accordance with the regulations. This strongly suggests that if representations were made beyond the time stipulated, the condition upon which the Minister was conferred power to consider revoking the cancellation decision was not satisfied. The consequences of a contrary conclusion should also be considered.[59] In my view, it could not have been intended that the power remained open to be exercised irrespective of whether the representation was made one day or one year outside the applicable time limit.[60] The ensuing uncertainty tells against a construction that a purpose of the Act was that representations made out of time should be regarded as valid and so capable of enlivening the power under s 501CA(4) to consider revocation of the cancellation decision.
[59]Project Blue Sky, (1998) 194 CLR 355, [91]; Fernando (2000) 97 FCR 407, [51] (Finkelstein J).
[60] Fernando (2000) 97 FCR 407, [51] (Finkelstein J), [55] (Dowsett J agreeing).
These conclusions direct attention to the nature of the relief being sought. Unlike Project Blue Sky, where the High Court held the Australian Content Standard which had already been determined, not to be invalid, here the applicant is asking for relief to compel the Minister to consider representations that are unlawful in the sense that they have not been made in accordance with the prescribed time limit.
Conclusion
The applicant contended that the November letter from the departmental officer was based on an incorrect understanding of the relevant sections of the Act and accordingly, he was entitled to relief by way of mandamus to compel the performance of that duty and exercise of the power which, it was said, s 501CA(4) of the Act conferred notwithstanding the expiry of the applicable time limit. For the reasons above, I have rejected the submissions upon which such relief was claimed.
It was common ground that in this case, the applicant was taken to have received the notice of the cancellation decision on 19 July 2018 and that the period of 28 days after that date for the lodgement of representations expired on 16 August 2018.[61] The July letter invited the applicant, in conformity with s 501CA(3)(b) of the Act and the requirements of reg 2.52(2)(b) of the regulations, to lodge with the Minister within 28 days after he was taken to have notice of that decision, representations seeking revocation of the cancellation decision As those representations were not received by the Minister until 10 October 2018, they had not been made in accordance with the invitation as required by s 501CA(3)(b) and 501CA(4)(a) of the Act. For the reasons above, by 10 October 2018, the Minister had no power to consider those representations.
[61] Regulations, reg 2.55(7)(a).
As was accepted in BDS20, a strong case could be made for the introduction of a discretion to extend the time in appropriate cases for the lodgement of representations in relation to a cancellation decision; however, that is plainly a matter for the Parliament.[62]
[62] [2020] FCA 1176, [51].
For the reasons above, the application should be dismissed.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Associate:
Date: 5 October 2020
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