Lewis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Lewis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4414 (4 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5333
Re:Russell Lewis
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date:4 November 2020
Place:Sydney

I affirm the decision refusing to revoke the cancellation of Mr Russell Lewis’ Class BF Transitional (Permanent) visa issued to him on 1 September 1994.
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Mr Rob Reitano, Member
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of Applicant’s Class BF Transitional (Permanent) visa – where visa was cancelled under s 501(3A) because Applicant did not pass character test – two notification letters – first notification letter posted to last known address of applicant – whether applicant made representations within the prescribed 28 day time period – representations made outside of prescribed time – power to consider whether to revoke the mandatory cancellation decision under s 501CA(4) not enlivened – decision under review affirmed
LEGISLATION
Firearms Act (NSW) 1996 (NSW) s 7A
Migration Act 1958 (Cth) ss 500, 501, 501CA
CASES
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176
QFWW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4266
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313
SECONDARY MATERIALS
Migration Regulations 1994 (Cth)
REASONS FOR DECISION
Mr Rob Reitano, Member
4 November 2020

Mr Lewis is a citizen of the United Kingdom who arrived in Australia in August 1985 when he was nine years old. He had permission to remain in Australia since 1 September 1994 because he was given a Class BF Transitional (Permanent) visa, but that permission came to an end on 5 June 2018 when a delegate of the Minister cancelled his visa as was required by s.501(3A) of the Migration Act 1958 (Cth) (Act).
FACTS
On 15 March 2018 Mr Lewis was convicted of an offence of unauthorised possession of a firearm, a .308 Ruger rifle, under ss.7A(1) of the Firearms Act 1996 (NSW). He was sentenced to a period of imprisonment of two years and three months.
The sentence meant that for the purpose of the Act Mr Lewis had ‘a substantial criminal record’ and that he failed the character test in s.501(6)(a) because his sentence was greater than 12 months imprisonment. Taken with the fact that he was, at the time his visa was cancelled, serving a fulltime custodial sentence for an offence against a law of a State (s.501(3A)(b)) the consequence was that the visa had to be cancelled. The cancellation of the visa happened, as I have said, on 5 June 2018.
Also on 5 June 2018, a delegate of the Minister gave Mr Lewis notice of the decision by sending a letter to Mr Lewis by registered mail to Lithgow Correctional Centre, PO Box 666, Lithgow NSW 2790. The evidence confirmed and I find that the letter was sent that day. The letter was posted to that address because a departmental officer had contacted Corrections Victoria and had been told that Mr Lewis was serving his sentence at Lithgow Correctional Centre. That information proved correct.
That letter recorded the decision to cancel the visa and the reasons why the Minister was required to cancel the visa. The letter also set out and enclosed information that was relevant to the decision, recording as it did the effect of s.501 of the Act, the details of the conviction and sentence, the fact that Mr Lewis failed the character test, and that he was serving a full-time custodial sentence.
That letter also invited Mr Lewis to make representations and said that any representations were required to be in writing and in English (or accompanied by an accurate English translation). For present purposes it is particularly important to record that the letter said:
The combined effect of s501CA(3)(b) and s501CA(4)(a) 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.
The letter pointed out that if the representations were received outside the 28 day time period they would not be able to be considered ‘because they would not have been made in accordance with the invitation, as required by s.501CA(4)(a) of the Act’.
On 12 June 2018 according to the records produced in evidence the letter was in fact received at Lithgow Correctional Centre on 12 June 2018.
On 14 June 2018 Mr Lewis was at least concerned about the prospect of his visa being cancelled referring to ‘possible deportation to UK upon completing his sentence’. This was evidenced from records produced by the Minister which were obtained from Lithgow Correctional Centre. Those records do not, however, indicate that he had in fact received and understood the contents of the letter that had been sent to him.
On 4 July 2018 the same kind of records indicate that Mr Lewis was telling an officer of Lithgow Correctional Centre that he had ‘issues’ with immigration, that he needed help to complete the forms and send them off, and that he had 28 days to do so from the date he received the paperwork even though he could not recall the day he received them. Mr Lewis confirmed before the Tribunal that he had received the letter and spoke to ‘welfare’, presumably officers of Lithgow Correctional Centre, a few days, perhaps three or four days, after he received it.
On 6 July 2018 Mr Lewis, through an officer of the Lithgow Correctional Centre, contacted the Minister and asked that the ‘paperwork’ be resent. The reference to the ‘paperwork’ appears, so it would seem, to be a reference to the letter of 5 June 2018.
On 9 July 2018 Mr Lewis through the same officer of Lithgow Correctional Centre sought an extension of the time to respond to the Minister’s letter of 5 June 2018. The extension was sought because Mr Lewis was unable to read or write and was ‘in a part of the gaol that was hard to access inmates’.
The Minister responded to that request by an email the same day which ‘attached the cancellation documentation’ and requested that it be provided to Mr Lewis ‘without delay’ because of ‘the limited time in which to apply for revocation of the visa cancellation’. The attachment to the email of 9 July 2018 comprised a letter dated 9 July 2018 which was in materially the same terms as the letter of 5 June 2018 except that it was dated 9 July 2018 and that it referred in the first paragraph to the letter of 5 June 2018.
A consequence of the fact that the letters were materially identical was that the reader was told that the requirement to make representations was ‘within 28 days after you are taken to have received this notice’. That would have led the reader to believe that the 28 day period was running from 9 July 2018. The letter did not say anything about the time period that was running as a result of the letter of 5 June 2018. The email did not attach the 5 June 2018 letter which was what had been originally sought.
On 24 July 2018 Mr Lewis made representations to the Minister which sought the revocation of the decision cancelling his visa
On 28 August 2020 a delegate of the Minister decided that because Mr Lewis did not pass the character test in the Act and because there was not ‘another reason’ why the decision to cancel the visa should be revoked, his power to revoke that decision was not enlivened.
On 2 September 2020 Mr Lewis applied to the Tribunal under s.500 of the Act for a review of the delegate’s decision.
I should observe that Mr Lewis filed a Statements of Facts, Issues and Contentions in the proceedings that recorded he had ‘issues with reading and writing’ and had been assisted by another detainee in preparing that document. In the hearing he said he could not write because of the consequences of a stroke he had had and its effect on his right hand.
THE ACT AND THE REGULATIONS
Section 501CA of the Act provides:
(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 practicable 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 (as defined by section 501); 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.
It is important that the jurisdictional facts that engage the power to revoke a cancellation decision are that representations are made ‘in accordance with the invitation’ as referred to in s.501CA(4)(a) and that one or other of the two states of satisfaction in s.501CA(4)(b) is found. As will be seen the issue here only concerns whether the first prerequisite to the exercise of power is met. I will return to this later.
Regulation 2.55(3) of the Migration Regulations 1994 (Cth) (Regulations) provides for the manner in which the Minister must give a document ‘to a holder or former holder of a visa relating to the revocation of the cancellation of a visa under the Act.’ The Minister has several choices available to him about how that is done. In this case he chose to avail himself of the option in r.2.55(3)(c) which involved dating the letter and despatching it within three working days of the date of the document by prepaid post or other prepaid means to the person’s last residential address, business address or post box address known to the Minister.
Regulation 2.55(7)(a) provides that if the Minister sends a document by prepaid post from an address in Australia to another address in Australia it is taken to be received seven working days after the date of the document.
Regulation 2.52(2)(b) provides for the period within which the representations are to be made under s.501CA(3)(b), which is ‘within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act’.
There is no express power in the Regulations (or the Act) to waive or extend the time within which the representations are to be made to the Minister.
ISSUE
The issue is whether the representations were made ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’ as prescribed by s.501CA(3)(b) such that they were ‘in accordance with the invitation’ . In other words, the issue is whether the objective jurisdictional fact in s.501CA(4)(a) is satisfied because it is an essential pre-condition to the exercise of the power to revoke the decision cancelling the visa.
If the representations were not made within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision it is unnecessary to consider whether the Tribunal can be satisfied that about whether Mr Lewis passes the character test or whether there is another reason to revoke the decision.
CONSIDERATION
The letter of 5 June 2018 was the notice that the Minister was required to give ‘as soon as is practicable’ under s.501CA(3). It set out the decision that had been made to revoke the visa and gave particulars of the relevant information. That letter also invited the making of representations and identified the period of 28 days within which those representations were to be made, referring expressly to the calculation of the relevant period in accordance with the Regulations. The letter in all relevant respects met the requirements of ss.501CA(3) in terms of what it was required to convey.
I am satisfied that Mr Lewis, despite his difficulties with reading English, understood the letter of 5 June 2018 to be about the cancellation of his visa and the need for him to make representations within 28 days of the day it was taken to be received. He said so much to an officer of Lithgow Correctional Centre on 4 July 2018.
The combined effect of r.2.55(3)(c) and r.2.55(7)(a) is that Mr Lewis was taken to have received the letter of 5 June 2018 on 15 June 2018: there was a weekend and a public holiday during the intervening period which are not ‘working days’ and therefore not included in the calculation of days for the purpose of those Regulations.
In order for his representations to have been made within the period of 28 days referred to in the letter, and within the period ascertained in accordance with r.2.52(b), they needed to be made to the Minister by 13 July 2018. The representations were not provided to the Minister until 24 July 2018. It follows that the representations were not made ‘within the period and in the manner ascertained in accordance with the regulations’. The objective jurisdiction fact required by s.501CA(4)(a) which engages the power to revoke is not capable of being found.
The letter of 9 July 2018 was wholly ineffective in constituting the relevant notice and invitation required by s.501CA(3) because that notice was not given ‘as soon as practicable after making the original decision’, as the fact of the existence of the 5 June 2018 letter demonstrates, and because it was not ‘the invitation’ referred to in s.501CA(4)(a) because that is exactly what the 5 June 2018 letter was. It was also wholly ineffective in changing the period in which representations were to be made as neither the Act nor the Regulations permitted time to be extended or waived for any reason.
I am bound by the judgments of Stewart J in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 and Katzman J in Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313. That approach has been followed by the Tribunal (see QFWW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4266).
Consistent with those authorities I am unable to find that the letter of 9 July 2018 constituted a new or fresh invitation to make representations within the meaning of s.501CA(3)(b) or that it was in any way effective in altering the period ‘ascertained in accordance with the regulations’ in which Mr Lewis was required to make representations. That period expired on 13 July 2018 and by then no representations had been made to the Minister.
CONCLUSION
I am unable to exercise the power to revoke the decision cancelling the visa because Mr Lewis did not ‘make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’. The absence of that jurisdiction fact means that the Tribunal is without any authority to revoke the decision cancelling the visa. The delegate refused to revoke the decision cancelling the visa.
As I have reached the conclusion that the power to revoke the mandatory cancellation is not available it is unnecessary to consider the other issues that are involved in this review, namely whether I can be satisfied either that Mr Lewis passes the character test or whether there is another reason to revoke the decsion cancelling his visa. I will therefore vacate the hearing that is set down to deal with those issues.
I affirm the decision refusing to revoke the cancellation of Mr Russell Lewis’ Class BF Transitional (Permanent) visa issued to him on 1 September 1994.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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Associate
Dated: 4 November 2020

Date of interlocutory hearing: 3 November 2020

Applicant: By videoconference

Solicitors for the Respondent: Minter Ellison

[2020] AATA 4414

4 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date of interlocutory hearing:	3 November 2020
Applicant:	By videoconference
Solicitors for the Respondent:	Minter Ellison