Gibson v Minister for Home Affairs

In *Gibson v Minister for Home Affairs*, the applicant sought judicial review of a decision by a delegate of the Minister for Home Affairs to cancel his visa. The applicant had been convicted of an offence constituting a serious criminal record and was serving a period of imprisonment. He was invited to make representations to the Minister for consideration to revoke the cancellation decision, but his representations were lodged more than 28 days after he was deemed to have received the invitation. The applicant contended that the Minister retained the power and duty to consider these late representations.

The central legal issue before the Federal Circuit Court was whether the power to consider representations for the revocation of a visa cancellation decision, conferred by section 501CA(4) of the *Migration Act 1958* (Cth), was preserved even when those representations were lodged outside the 28-day time limit prescribed by regulation 2.52(2)(b) of the *Migration Regulations 1994* (Cth). The applicant argued that the purpose of the Act necessitated that representations rendered unlawful by reason of being out of time should nonetheless be considered valid to preserve the power to consider revocation.

The Court determined that the power conferred by section 501CA(4) of the Act was spent once the prescribed time limit for making representations had expired. The Court noted that this issue had been determined adversely to the applicant in *BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2020] FCA 1176, a decision of the Federal Court published on the date of the hearing. As the Federal Circuit Court is bound by decisions of the Federal Court, and finding no basis to conclude that *BDS20* did not entail consideration of the issues raised in this proceeding, the Court held that the respondent was not permitted to consider the request for revocation as the representations were made outside the statutory period. Consequently, mandamus was not available, and the application was dismissed.