Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

In the case of Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the applicant sought a review of a decision by the Administrative Appeals Tribunal (AAT) which had affirmed the Minister’s decision not to revoke a visa cancellation under section 501CA(4) of the Migration Act 1958 (Cth). The dispute centred around whether the jurisdictional fact that the applicant made representations within the specified timeframe was satisfied, and whether any error in the Tribunal’s determination was material. The primary issue before the court was whether the Tribunal had erred in its assessment of whether the jurisdictional fact was satisfied, and if such an error was material enough to warrant setting aside the decision.

The court examined the statutory framework provided by section 501CA and relevant regulations, noting the strict 28-day period within which representations must be made. It referenced previous cases such as BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, and Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to underline that the period for making representations is non-extendable and must be strictly adhered to. The court found that the criterion for the exercise of the Minister’s power to revoke a visa cancellation, namely that the person makes representations within the specified period, is an objective jurisdictional fact. It held that if this criterion is not satisfied, the decision to cancel the visa cannot be legally valid. The court concluded that the Tribunal had indeed made an error of law by not correctly applying this jurisdictional fact, and this error was material as it affected the legality of the decision.

Given the Tribunal's error of law, the court set aside the decision of the second respondent dated 25 May 2020 and remitted the matter back to the Tribunal for redetermination in accordance with the law. The court also ordered that the first respondent pay the applicant’s costs as agreed or taxed.