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

[2020] AATA 4266

QFWW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4266 (23 September 2020)

Division:GENERAL DIVISION

File Number:          2020/4120

Re:QFWW  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Linda Kirk

Date:23 September 2020

Date of written reasons:        23 October 2020

Place:Sydney

The Reviewable Decision dated 30 June 2020 is affirmed.

......[sgd]..................................................................

Senior Member Linda Kirk

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation of a visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – first notification letter posted to last known address of applicant – whether the applicant received the first notification letter – where first notification letter was returned to Department as ‘returned to sender’ – second notification letter – whether applicant received second notification letter by hand or email – applicant signed receipt of notification – whether applicant made representations within the prescribed 28 day time period – representations made outside of prescribed time – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

Ali v Minister for Home Affairs [2020] FCAFC 109

BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176

Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120

Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313

WRITTEN REASONS FOR DECISION

Senior Member Linda Kirk

23 October 2020

APPLICATION FOR REVIEW

1. QFWW (‘the Applicant’) was born in South Sudan in 1985.  In 2003, the Applicant and members of his family were granted a Global Special Humanitarian (Class XB) (subclass 202) visa (‘the visa’). The Applicant arrived in Australia as a holder of the visa on 11 August 2003.[1]

   [1] Exhibit R1, G14, 113; G39, 224.

2. The Applicant’s National Criminal History check dated 22 April 2020, records that he was convicted of a number of offences in Australia between the period 2005 and 2019, including inter alia: Drive with middle range PCA, Maliciously wound in company, Affray, Take and drive conveyance without consent of owner, Recklessly causing grievous bodily harm, Dishonestly obtain property by deception-T1 and Custody of a knife in a public place.[2]

   [2] Exhibit R1, G6, 40–50.

3. As a result of convictions recorded on 4 June 2019, the Applicant was sentenced to an aggregate term of 15 months’ imprisonment, with a non-parole period of 11 months.[3]  The Applicant was again convicted and sentenced to nine months’ imprisonment on 29 January 2020 for Drive conveyance [without] consent of owner, although this was later reduced to a seven month sentence on appeal.[4]

   [3] Exhibit R1, G6, 41–48.

   [4] Exhibit R1, G6, 40–41.

4. On 13 August 2019, the Department of Home Affairs (‘the Department’) issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’)[5] under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above. On this date, the Applicant was serving a sentence of full-time imprisonment at South Coast Correctional Centre in New South Wales.

   [5] Exhibit R1, G41, 228.

5. On 4 October 2019, the Applicant’s representative provided to the Department, by email, a request for revocation of the Mandatory Visa Cancellation Decision, representations to the Minister in support of his revocation request, a completed Personal Circumstances Form and submissions, all dated 4 October 2019.[6]

   [6] Exhibit R1, G13–G18.

6. On 30 June 2020, a delegate of the Minister for Home Affairs[7] decided not to revoke the Mandatory Visa Cancellation Decision under subsection 501CA(4) of the Act (‘the Reviewable Decision’).[8]

   [7] The relevant Minister is now named the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

   [8] Exhibit R1, G3, 23.

7. On 9 July 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[9]

   [9] Exhibit R1, G1, 1-7.

8. The matter was heard at a hearing of the Tribunal on 16, 18 and 22 September 2020. The Applicant attended the hearing via video-conference from Villawood Immigration Detention Centre and was represented by counsel. He gave oral evidence at the hearing.

9. The material before the Tribunal consists of:

   ·Applicant’s Statement of Facts, Issues and Contentions (‘Applicant’s SFIC’) dated 31 July 2020;

   ·Applicant’s Supplementary Statement of Facts, Issues and Contentions (‘Applicant’s Supplementary SFIC’) dated 21 August 2020;

   ·Respondent’s Statement of Facts, Issues and Contentions (‘Respondent’s SFIC’) dated 17 August 2020;

   ·G-documents (G1 to G42, pages 1 – 272) – Exhibit R1;

   ·Respondent’s Supplementary Documents (S1 – S3, pages 1-17) – Exhibit R2;

   ·Respondent’s Further Supplementary Documents (FS1 – FS2, pages 1 – 20) – Exhibit R3;

   ·Further documents filed by the Applicant comprising:

   oReport by Tim Watson-Munro (consultant psychologist) together with a curriculum vitae filed 31 August 2020 – Exhibits A1 and A2;

   oMap of Sudan filed 15 September 2020 – Exhibit A3;

   oStatement of Ms SG dated 4 August 2020 – Exhibit A4;

   oStatement of Mrs RA dated 29 July 2020 – Exhibit A5;

   oDFAT Country Reports for Sudan and South Sudan filed August 2020 – Exhibits A6 and A7;

   oMedical Certificate for Mrs RA dated 29 July 2020 – Exhibit A8;

   oLaws of South Sudan – The Nationality Act 2011 and the Sudanese Nationality Act 1994 and its amendments 2011 and 2018 (English translation) filed 21 September 2020 – Exhibits A9 and A10; 

   oDistrict Court of NSW Advice of Court Result dated 7 April 2020;

   oApplicant’s submissions on executive power dated 15 September 2020;

   oApplicant’s list of authorities dated 15 September 2020;

   oApplicant’s submission on Respondent’s preliminary point dated 18 September 2020;

   oApplicant’s submissions in reply on constitutional point dated 22 September 2020; and

   oApplicant’s revised list of authorities dated 21 September 2020.

   ·Further documents filed by the Respondent comprising:

   oReasons for judgement in:

   ·         BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176; and

   ·         Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313;

   oRespondent’s submissions with respect to whether paragraph 501CA(4)(a) of the Migration Act 1958 (Cth) is met dated 18 September 2020;

   oRespondent’s submissions on ‘the constitutional issue’ dated 21 September 2020; and

   oAppendix A of the Legal Services Direction 2017 (Cth).

10. The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.

    LEGISLATION

11. Subsection 501(3A) of the Act provides:

    (3A) The Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    paragraph (6)(e) (sexually based offences involving a child); and

    (b)the person 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 a Territory.

12. Subsection 501CA(1) of the Act relevantly provides as follows:

    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.

13. Subsection 501CA(3) of the Act provides for the notification to the visa holder of the cancellation of the visa:

    (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.

14. Regulation 2.52 of the Migration Regulations 1994 (Cth) (‘the Regulations’) provides:

    (1)This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.

    (2)The representations must be made:

    a)     …

    b) for a representation under paragraph 501CA(3)(b) of the Act – within 28 days after the person is given the notice and the particulars of relevant information under subparagraph 501CA(3)(a) of the Act.

15. Regulation 2.55 of the Regulations applies to the giving of a document to a holder or former holder of a visa relating to the proposed cancellation or the cancellation of a visa under the Act: paragraph 2.55(1)(a).

16. Sub-regulation 2.55(3) provides that, subject to sub-regulation (3A) which applies to minors, for a document mentioned in paragraph 2.55(1)(a) of the Regulations (of which the decision to cancel the applicant's visa under subsection 501(3A) is one), the Minister must give the document in one of the ways there prescribed. The methods of giving documents include:

    (a) …

    (b) by handing it to another who:

    (i)     is at the person's last residential or business address known to the Minister; and

    (ii)    appears to live there (in the case of a residential address) or work there (in the case of a business address); and

    (iii)   appears to be at least 16 years of age;

    (c)by dating it, and then dispatching it:

    (i)     within three working days (in the place of dispatch) of the date of the document; and

    (ii)    by prepaid post or by other prepaid means;

    to the person's last residential address, business address or post box address known to the Minister; or

    (d)by transmitting the document by:

    (i)     fax; or

    (ii)    email; or

    (iii)   other electronic means;

    to the last fax number, email address or other electronic address known to the Minister.

17. Sub-regulation 2.55(7) of the Regulations provides:

    (7)If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:

    (a)if the document was dispatched from a place in Australia to an address in Australia - 7 working days (in the place of that address) after the date of the document; or

    (b)in any other case - 21 days after the date of the document.

18. If the Minister gives a document to a person by transmitting it by fax, email or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted: sub-regulation 2.55(8) of the Regulations.

19. Sub-regulation 2.55(9) of the Regulations provides that, if:

    (a)the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and

    (b)the person nonetheless receives the document or a copy of the document;

    the Minister is taken to have given the document to the person and the person is taken to have received the document:

    (c)at the time specified by this regulation for that method; or

    (d)if the person can show that he or she received the document at a later time--at that later time.

    ISSUES FOR DETERMINATION

20. Subsection 501CA(4) of the Act allows the Minister to revoke 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.

21. The issues for determination are:

    (a)did the Applicant make representations in accordance with the invitation; if so

    (b)does the Applicant pass the character test; and

    (c)is there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

    EVIDENCE AND SUBMISSIONS

    First notification letter

22. A letter notifying the Applicant of the Mandatory Visa Cancellation Decision dated 13 August 2019 (‘the first notification letter’) was enclosed in an envelope and sent by the Department to the Applicant by way of registered post to Dawn de Loas Correctional Centre on 14 August 2019.[10] This written notice included an invitation to make the representations pursuant to paragraph 501CA(3)(b) of the Act.

    [10] Exhibit R1, G41, 228–234.

23. The notice included the following in relation to the timeframe for making representations:

    Timeframe to make representations about revocation

    Under Regulation 2.52(2), any representations you may wish to make in relation to the revocation of the original decision must be made within 28 days after you are given this notice.  That means, in order for your representations to be considered, the Required Information (see explanations above) MUST be received by the Department within 28 days after you are taken to have received this notice.

    Providing the Required Information

    If you decide to make representations to the Minister to seek revocation of the original decision, it is essential that the Required Information is received by the Department within 28 days after you are taken to have received this notice as this timeframe cannot be extended. … If the Required Information is received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider your representations because they would not have been made in accordance with the invitation (as set out in this notice) as required by s501CA(4)(a) of the Act.[11]

    [Emphasis and underlining in original]

    [11] Exhibit R1, G41, 230-231.

24. On 28 August 2019, the envelope enclosing the first notification letter was received by the Department in Melbourne. The envelope was marked ‘Return to Sender’ with a notation ‘Left Address/Unknown’.[12] 

    [12] Exhibit R3, 1.

25. The Respondent submits there is no obligation on the Respondent to demonstrate – from his own records – precisely when the notice was sent (irrespective of the date on the notice).[13] In accordance with sub-paragraphs 2.55(3)(c)(i) and (ii) of the Regulations, it is open to the Tribunal to draw an inference that the letter was dispatched on 14 August 2019 and sent by prepaid post, as evidenced by the envelope which includes a stamp.[14] The letter was posted to the Applicant at his last known residential address, being Dawn de Loas Correctional Centre based on information contained in a file note dated 13 August 2019, which states that a Departmental officer made contact with the NSW Corrective Services sentence management section by email on that day, and was advised that the Applicant was detained at Dawn de Loas Correctional Centre.[15] 

    [13] Respondent’s submissions dated 18 September 2020.

    [14] Exhibit R3, SF1, 1; Respondent’s submissions dated 18 September 2020 [13]; Transcript, 18-19.

    [15] Exhibit R1, G41, 239; Respondent’s submissions dated 18 September 2020 [14]; Transcript, 19.

26. The Respondent further contends that paragraph 2.55(7)(a) deems a person to have received a document that was sent by registered post seven business days after the date of the letter, meaning that the Applicant was deemed to have received the notification letter on 22 August 2019.[16] The last day for making representations was therefore 19 September 2019, being 28 days after the Applicant was taken to have received the invitation: paragraph 2.52(2)(b).[17]

    [16] Respondent’s submissions dated 18 September 2020 [15]; Sillars at [30]; Transcript, 20.

    [17] Respondent’s submissions dated 18 September 2020 [15]; Transcript, 20.

27. The Applicant contends that the unexplained markings on the envelope are insufficient to support an inference that the notice dated 13 August 2019 was contained in the envelope and dispatched on 14 August 2019.[18] The envelope was returned to sender and received by the Department on 28 August 2019.  The only inference available is that the envelope was sent by the Minister to and received by his Department.[19]

    [18] Applicant’s Submissions on the Preliminary Point dated 18 September 2019 [11].

    [19] Applicant’s Submissions on the Preliminary Point dated 18 September 2019 [12]; Transcript, 31.

28. The Applicant did not provide any address to the Minister and Regulation 2.55(7) has no operation unless the communication is ‘given’ to at least someone.  This has not been shown nor has it been shown that the Applicant was at the place to which the letter was sent.  The envelope is marked ‘Return to Sender’ and therefore it cannot be said that ‘notice’ has been ‘given’ if the notice has never been delivered or received or communicated to anyone.[20]  The person who sent the letter from the Minister’s office was not called to give evidence as to the contents of the envelope, nor was the person who received and opened the letter when returned.  It cannot be inferred that the notice dated 13 August 2019 was in the envelope and therefore none of the inferences can be relied on.[21]

    [20] Applicant’s Submissions on the Preliminary Point dated 18 September 2019 [14]; Transcript, 31.

    [21] Applicant’s Submissions on the Preliminary Point dated 18 September 2019 [16]-[18]; Transcript, 31.

    Second notification letter

29. A second letter notifying the Applicant of the Mandatory Visa Cancellation Decision dated 2 September 2019 (the second notification letter) was addressed to the Applicant at South Coast Correctional Centre in Nowra and marked ‘by hand’.[22]  The Applicant’s NSW Department of Corrective Services records confirm that he was incarcerated at that prison at that time.[23] Pursuant to paragraph 501CA(3)(b) of the Act, the second notification letter stated that the Applicant was invited to make representations about why the decision to cancel his visa should be revoked within 28 days after the Applicant was taken to have received the notice.

    [22] Exhibit R2, S1, 2-7.

    [23] Respondent’s submissions dated 18 September 2020 [19]; Exhibit R2, S1, 1–7; Exhibit R2, S3, 14.

30. The second notification letter was emailed by the National Character Consideration Centre (NCCC) of the Department to three NSW government email addresses, including South Coast Correctional Centre in Nowra at 4:50pm on 2 September 2019. The Respondent contends that, in accordance with sub-regulation 2.55(8) of the Regulations, as the notice was transmitted by email, the Applicant is taken to have received the document at the end of the day on which the document was transmitted, that is 2 September 2019.[24]

    [24] Transcript, 21, 26-27.

31. The Applicant contends that the letter dated 2 September 2019 makes no reference to an email address and therefore there is insufficient evidence that it was transmitted by email and therefore that the deeming provisions in sub-regulation 2.55(8) do not apply.[25] The relevant deeming provision is sub-regulation 2.55(7) as the letter was not delivered by pre-paid post but by other pre-paid means.[26]   The notice is therefore taken to have been received seven working days after the date of the letter, that is 13 September 2019.  Accordingly, the Applicant’s representations were made well within the 28-day time period.[27]

    [25] Applicant’s Submissions on the Preliminary Point dated 18 September 2019 [24], [27].

    [26] Applicant’s Submissions on the Preliminary Point dated 18 September 2019 [23].

    [27] Applicant’s Submissions on the Preliminary Point dated 18 September 2019 [33]; Transcript, 15.

1. The Respondent also alternatively contends that the Applicant was notified in accordance with the Regulations relating to providing a document by hand to the Applicant, being the second notification letter dated 2 September 2019 in accordance with paragraph 2.55(3)(a). The Applicant was handed the document on 5 September 2019 by the Senior Assistant Superintendent of the South Coast Correctional Centre, Nowra as demonstrated by the Applicant’s signature on a document acknowledging receipt of the Notice of Visa Cancellation under subsection 501(3A).[28]  As the Applicant was notified of the decision and given the invitation to make representations on 5 September 2019, the 28 day period for making representations ended (no later than) on 3 October 2019.[29]

   [28] Respondent’s submissions dated 18 September 2020 [23]; Exhibit R2, S2, 9–10; Transcript, 22.

   [29] Respondent’s submissions dated 18 September 2020 [24]; Transcript, 22, 26-27.

2. The Respondent further contends that if the Tribunal is not satisfied that either notification letter met the requirements of the Act and Regulations, the Applicant was nevertheless notified of the Minister's decision and given the invitation to make representations on 5 September 2019 in accordance with sub-regulation 2.55(9).[30]

   [30] Respondent’s submissions dated 18 September 2020 [22]; Transcript, 22, 27.

3. The Applicant contends that there is insufficient evidence to rely on the deeming provision in sub-regulation 2.55(9).[31]  Even if it does apply to render 5 September 2019 the date of the notice and the invitation, the Applicant’s representations dated 4 October 2019 were within time because they were provided within 28 days after 5 September 2019 within the meaning of sub-regulation 2.42(2)(b).[32]

   [31] Applicant’s Submissions on the Preliminary Point dated 18 September 2019 [29]-[31].

   [32] Applicant’s Submissions on the Preliminary Point dated 18 September 2019 [32].

   CONSIDERATION AND REASONS

4. As observed by Stewart J in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 (‘BDS20’), the criterion for the exercise of the Minister’s power to revoke a visa cancellation in paragraph 501CA(4)(a) of the Act, namely that the person makes representations in accordance with the invitation, is an objective jurisdictional fact.[33]  Accordingly:

   “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”.[34]

   (a) Did the Applicant make representations in accordance with the invitation?

   [33] [40]: Citing Ali v Minister for Home Affairs [2020] FCAFC 109 at [40] per Collier, Reeves and Derrington JJ.

   [34] Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at [43] per Gummow, Kirkby, Hayne, Heydon, Crennan and Kiefel JJ.

   What was the timeframe during which the Applicant could make representations?

5. The evidence before the Tribunal supports a finding that the Department dispatched the first notification letter by registered post to the Applicant at his last residential address known to the Minister within three working days of the date of the notice in accordance with paragraph 2.55(3)(b) of the Regulations. The letter was addressed to the Applicant at Dawn de Loas Correctional Centre following inquiries made by email by a Departmental officer with the NSW Corrective Services sentence management section as to the location of the Applicant, as recorded in the Department file note dated 13 August 2019.

6. The documentary evidence before the Tribunal, specifically the envelope addressed to the Applicant at Dawn De Loas Correctional Centre, which is stamped with the date and time of dispatch ‘12:00 14/08/2019’, supports a finding that the first notification letter was dispatched on 14 August 2019 at midday.  While the Tribunal would have been assisted by oral evidence of the relevant officers who prepared and dispatched the notification letter, the Tribunal accepts the documentary evidence before it as to the date and time of dispatch.

7. In accordance with sub-regulation 2.55(7), the Applicant is ‘taken to have received the document’ seven working days later; on 22 August 2019.  Although the notification letter was returned to sender, the Applicant was nevertheless deemed to have received the notification letter on this date. [35]  In Murphy v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 135 FCR 550; [2004] FCA 657 at [69] Spender J observed as follows in relation to the phrase ‘taken to have received the document’:

   The person is “taken to have received the document”, in the circumstances of this case, seven working days after the date of the document. In my view this provision manifests an intention that a person is taken to have received the document seven working days after the date of the document, without qualification. There is nothing to indicate that the effect of the subsection is to be read as if there was a proviso that the person was not taken to have received the document where the documents had been returned undelivered to the sender within seven working days after the date of the document, or that the subsection operates in its terms only “until the contrary is proved”. (emphasis added).

   [35] Respondent’s submissions dated 18 September 2020 [16].

8. The evidence before the Tribunal contained in NSW Corrective Services, Conviction, Sentences and Appeals records is that the Applicant was transferred to Dawn de Loas Correctional Centre from South Coast Correctional Centre on 6 August 2019.[36]  This is consistent with the information provided by the NSW Corrective Services sentence management section to the Department on 13 August 2019 that the Applicant was detained at Dawn de Loas Correctional Centre on this date.  The records also show that the Applicant was transferred back to South Coast Correctional Centre on 15 August 2019.

   [36] Exhibit R2, 14.

9. Paragraph 2.55(3)(b) requires only that the letter be dispatched by prepaid post or other prepaid means ‘to the person’s last residential address … known to the Minister.’  The last residential address of the Applicant ‘known to the Minister’ was Dawn de Loas Correctional Centre, and accordingly the Respondent met the requirements of the sub-regulation in sending the first notification letter to this address, and the Applicant was ‘taken to have received the document’ seven working days following the date of the letter on 22 August 2019.

10. In Murphy, Spender J observed at [71] that in circumstances where an applicant does not receive a notification for reason it is returned to sender, ‘the requirements of notification to a person descend to a ritualistic and solemn farce.’ However, in Murphy the consequence was a result of Mr Murphy failing to inform the Department of any relevant change of address and so was one of what Spender J termed ‘his own misfeasance.’  In this case, the Applicant did not provide, and was under no obligation to provide, a residential or other address to the Department, and the consequences of him not receiving the notification are therefore not of the Applicant’s making.  This however does not change the deeming effect of sub-regulation 2.55(7) which provides that the Applicant received the first notification letter seven working days following the date of the letter.

11. As required by the invitation, the final day for the Applicant to make representations was 28 days after deemed receipt of the first notification letter, that is by 19 September 2019. As the Applicant did not provide representations in support of his request for revocation until 4 October 2019, he did not satisfy the requirements of sub-regulation 2.52(2)(b).

12. The evidence before the Tribunal is that when it was made aware by the return of the first notification letter that the Applicant was not located at Dawn de Loas Correctional Centre, the Department dispatched the second notification letter by email, including to the South Coast Correctional Centre email address.  This letter was marked ‘by hand’ suggesting that it was to be delivered by the recipient to the Applicant.  The only evidence that supports a finding of when this occurred is the document signed by the Applicant acknowledging receipt of ‘Notice of Visa Cancellation Documents’ provided to him by an employee of the NSW Government at South Coast Correctional Centre at 11:40am on 5 September 2019. 

13. Based on this documentary evidence, the Tribunal finds that, in accordance with paragraph 2.55(3)(a), the Applicant received the second notification letter containing an invitation to make representations on 5 September 2019. Accordingly, the Applicant had 28 days from this date, ending on 3 October 2019, to make his representations in accordance with the invitation. The time-limits imposed by the Regulations do not provide for any relaxation or extension.

14. As the Applicant did not provide representations in support of his request for revocation until 4 October 2019, he did not satisfy the requirements of paragraph 2.52(2)(b). 

    (b) What is the consequence of failure to make representations within the timeframe?

15. The consequence of the Applicant’s failure to make representations within the timeframe prescribed by the invitation is that the power to revoke the Mandatory Visa Cancellation Decision in subsection 501CA(4) of the Act is not enlivened as ‘an essential pre-condition for the valid exercise of the revocation power is not met.’[37]

    [37] Sillars v Minister for Immigration, Citizenship, Migrant Services andMulticultural Affairs [2020] FCA 1313 (‘Sillars’) at [75].

16. In BDS20, Stewart J observed at [48] that ‘[i]t would introduce uncertainty contrary to the statutory scheme if even after the relevant period has expired and representations have not been made, the person could later make representations such as to enliven the power to revoke the cancellation.’ As Katzman J noted in Sillars at [74], the effect of BDS20 ‘is that representations made outside the statutory period are not representations within the meaning of s 501CA(4).’   The Tribunal respectfully agrees with the observations of Stewart J in BDS20, that there is a ‘strong case’ for the introduction of a discretion to extend time in appropriate cases, but this would require an amendment to the legislative scheme: BDS20 at [51]; Sillars at [74].

17. In this case, the Minister’s delegate erroneously proceeded on the basis that they could consider the Applicant’s representations made outside the prescribed period and if there was ‘another reason’ to revoke the cancellation of the visa, the revocation power would be enlivened.  However, this error does not affect the consequences of the failure to provide representations within the specified timeframe, namely that the power to revoke is not enlivened.  As Spender J observed in Murphy at [52], the power to revoke the cancellation provided in subsection 501CA(4) cannot be ‘revived by the lateness of submissions being overlooked … by the Minister.’

18. For the reasons stated above, as an essential precondition for the valid exercise of the revocation was not met, the only lawful conclusion available to the delegate was that the power to revoke to Mandatory Visa Cancellation Decision was not enlivened.  As Stewart J noted in BDS20 at [53], the delegate ‘simply lacked the power to do anything other than to, in effect, reject the application’.

19. The Tribunal is similarly unable, on review, to exercise the power in subsection 501CA(4) to revoke the Mandatory Visa Cancellation Decision for the same reason that the lateness of the Applicant’s representations in response to the invitation means that one of the mandatory preconditions to its exercise is not satisfied.

    CONCLUSION

20. The requirement that representations are made in accordance with the invitation is an objective jurisdictional fact whose satisfaction preconditions the Tribunal’s power to revoke a Mandatory Visa Cancellation Decision pursuant to subsection 501CA(4) of the Act. As this statutory precondition is not satisfied in this case, the Tribunal’s power to revoke the Mandatory Visa Cancellation decision is not enlivened and the operative effect of the Reviewable Decision cannot be altered.

21. Having reached this conclusion on the first issue for determination, it is unnecessary for the Tribunal to consider the other identified issues for determination in this review application.

    DECISION

22. The Reviewable Decision dated 30 June 2020 is affirmed.

I certify that the preceding 53 (fifty – three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

.....[sgd]...................................................................

Associate

Dated: 23 October 2020

Dates of hearing:	16, 18 and 22 September 2020
Counsel for the Applicant:	Mr P King
Solicitors for the Applicant:	Mr M Malik, Malik Lawyers
Solicitors for the Respondent:	Ms S Prasad, Minter Ellison