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

[2020] AATA 994

Sillars and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 994 (29 April 2020)

Division:GENERAL DIVISION

File Number:           2020/0991

Re:Andrew Sillars  

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis 

Date:29 April 2020

Place:Brisbane

The Tribunal’s power to revoke the Respondent Minister’s original visa cancellation decision made pursuant to s501(3A) of the Act is not enlivened. Accordingly, the only course open to the Tribunal is to affirm the decision made pursuant to s501CA(4) of the Act presently before the Tribunal.

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

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Practice and Procedure – section 501CA(4) of the Migration Act 1958 (Cth) - Interlocutory Hearing– where the Applicant made representations out of time – acknowledged defect in delegate’s decision making process – whether a decision so made is a reviewable decision – whether the Tribunal’s power to revoke the original cancellation decision is enlivened – decision before the Tribunal affirmed

Legislation

Acts Interpretation Act 1901 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd [1979] FCA 21

Comcare v Heffernan [2011] FCAFC 131

Formosa v Secretary, Department of Social Security (1988) 81 ALR 67

Minister for Immigration and Multicultural Affairs v Ahmed [2005] FCAFC 58

Minister for Immigration and Multicultural Affairs v Li [2000] FCA 495

Minister for Immigration; Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93

Roberts v Repatriation Commission (1992) 111 ALR 436

Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906

Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248

REASONS FOR DECISION

Senior Member Theodore Tavoularis

29 April 2020

INTRODUCTION

1. The hearing of the substantive application in this matter was listed before this Tribunal on Wednesday, 22 April 2020. At a Telephone Directions Hearing (“TDH”) held on Friday, 17 April 2020, the Respondent Minister made submissions to this Tribunal about a procedural issue requiring ventilation and consideration prior to commencement of the hearing. The issue involved a potential dismissal of the substantive application because the Applicant did not make representations in accordance with the Respondent Minister’s invitation pursuant to s501CA(3) of the Migration Act1958 (Cth) (“the Act”). If that issue were resolved adverse to the Applicant, the net effect would be that this Tribunal’s power to revoke the delegate’s mandatory cancellation decision would not be enlivened.

2. Ventilation of this procedural issue was adjourned to a further TDH on Monday, 20 April 2020 so the parties could be afforded further time to consider their respective positions and obtain legal advice thereon. The TDH proceeded before me on that day and was conducted on the basis that the Applicant appeared on his own account by way of telephone and the Respondent Minister was legally represented by a practitioner[1] who appeared by way of videoconference. The material referred to or tendered in the course of the TDH that proceeded on 20 April 2020 contained a large bundle of documents comprising:

   ·The G Documents (filed 5 March 2020);

   ·The Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) dated 24 March 2020 and filed on that day;

   ·The Respondent’s SFIC dated 15 April 2020 and filed on that day; and

   ·Respondent’s Tender Bundle filed on 15 April 2020.

   [1] Mr Karwan Eskerie, Partner, Sparke Helmore, Sydney.

   BACKGROUND

3. The Applicant is a 33 year old citizen of the United Kingdom, having arrived in Australia aged five months. The Respondent’s SFIC tendered at the TDH on 20 April 2020 helpfully contain a summary[2] of the Applicant’s offending history in this country. The history (in terms of appearances for sentencing) runs from June 2006 until October 2018. It is a varied history in terms of the nature of offences committed. Those offences comprise assaults (including actual bodily harm), stalking/intimidation, larceny and dishonestly obtaining an advantage by deception, possession of unlawful drugs and a range of driving offences.

   [2] Refer to Annexure A of the Respondent’s SFIC.

4. In 2014, the Respondent Minister gave consideration to the mandatory cancellation of the Applicant’s visa. Ultimately, the visa was not cancelled and the Applicant received a warning, via correspondence dated 20 February 2014, that cancellation of his visa may be reconsidered if he committed further offences or otherwise breached the character test.

5. The Applicant continued to offend after receipt of this correspondence. This culminated in the Respondent Minister’s mandatory cancellation of the subject visa on 14 December 2016. The Applicant sought revocation of that mandatory cancellation decision and made written representations to the Respondent Minister in support of revocation. On 19 October 2017, a delegate of the Respondent Minister decided to revoke the mandatory cancellation decision. This constitutes a second ‘warning’ to the Applicant that cancellation of his visa would have been reconsidered were he to commit further offences. The Applicant was told:

   “Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.”[3]

   [3] Section 501G Documents, G15, page 83.

6. The Applicant continued to offend after this successful outcome that resulted in the restoration of his visa rights. As a result of convictions for further offences for which the Applicant was sentenced on 6 September 2018, he received an aggregate term of imprisonment of 12 months. This sentence spawned a notification from the Respondent Minister on 7 November 2018 that the Applicant’s visa had, for the second time, been mandatorily cancelled. Fifty days later, on 27 December 2018, the Applicant again made representations seeking revocation of this second mandatory cancellation decision.

7. There followed: (1) a decision on 11 February 2020 from a delegate of the Respondent Minister to not revoke the mandatory cancellation of the visa, and (2) the filing of the substantive application on 18 February 2020 for review of that mandatory cancellation of the visa.

   RELEVANT LEGISLATION

8. Section 501CA(3) of the Act relevantly provides:

   “As soon as practicable after making the original decision [that is, the Minister’s decision under s501(3A)], 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.”

9. Section 501CA(4) of the Act relevantly provides:

   “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.”

10. Regulation 2.52 of the Migration Regulation 1994 (Cth) (“the Regulations”) provides:

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

    2The representations must be made:

    (a)for a representation under paragraph 501C(3)(b) of the Act – within 7 days after the person is given the notice under subparagraph 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 the notice and the particulars of relevant information under subparagraph 501CA(3)(a) of the Act.”

11. Regulation 2.55 of the Regulations relevantly provides:

    1This regulation applies to:

    (a)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; and

    …

    3Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:

    …

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

    (ii)    (i) within 3 working days (in the place of dispatch) of the date of the document; and

    (iii)   (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;

    …

    7If 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 that document; or

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

    ISSUE: IS THE TRIBUNAL’S POWER AFFECTED?

12. Section 501CA of the Act empowers the Respondent Minister to make the original mandatory cancellation decision. Section 501CA(3) stipulates the Respondent Minister’s obligations to an adversely affected visa holder after the mandatory cancellation decision is made. Section 501CA(4) empowers the Respondent Minister[4] to revoke the mandatory cancellation decision. The power to so revoke is predicated upon:

    (a)The person[5] making representations in accordance with the invitation;[6]

    (b)The Respondent Minister being satisfied that:[7]

    (i)the person passes the character test; or

    (ii)there is another reason why the original decision should be revoked.

    [4] Or, of course, this Tribunal reviewing that decision.

    [5] That is, the adversely affected visa holder.

    [6] Pursuant to s501CA(4)(a) of the Act.

    [7] Pursuant to s501CA(4)(b) of the Act.

13. A plain reading of s501CA(4) makes it clear that the meeting of the two conditions in s501CA(4)(a) and (b) is a mandatory prerequisite to the exercise of the power to revoke a mandatory cancellation decision. Neither of these conditions can be waived, varied or otherwise dispensed with on any purported exercise of the power to revoke.

14. Since the filing of the substantive application, and in the course of its preparation for hearing, it has become apparent to the Respondent Minister that one of the two mandatory conditions in s501CA(4) has not been met. Specifically, and with reference to s501CA(4)(a), the Applicant does not appear to have made representations in accordance with the Respondent Minister’s invitation. The invitation gives rise to an obligation on the Applicant 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.”[8]

    [8] Section 501CA(3)(b).

15. The reference to “in accordance with the regulations” is a reference to regulation 2.52(2) of the Regulations. This regulation stipulates that the Applicant must make the representations within 28 days after the Applicant is given a written notice setting out the original decision[9] and particulars of the relevant information.[10] I agree with the contention of the Respondent: the language of the regulation 2.52(2) does not connote flexibility or permissiveness. This inflexibility is supported by the language of s501CA(4)(a) which allows the Respondent Minister to revoke the original decision if the representations are not made in accordance with the invitations issued pursuant to s501CA(3)(b).

    [9] Section 501CA(3)(a)(i).

    [10] Section 501CA(3)(a)(ii).

    The sequence of events

16. The Respondent Minister sent the Applicant a written notice of the decision to mandatorily cancel the Applicant’s visa on 7 November 2018. This written notice included an invitation to make the necessary representations pursuant to s501CA(3)(b).

17. Pursuant to Regulation 2.55, the invitation was:

    ·dated 7 November 2018 (Regulation 2.55(1)(c));

    ·dispatched to the Applicant’s last residential address known to the Respondent Minister (Regulation 2.55(3)); and

    ·dispatched by prepaid registered post (Regulation 2.55(3)(c)(ii)).

18. The terms of the notice are of critical importance:

    “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 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.

    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 representations because they would not have been made in accordance with the invitation, as required by s501CA(4)(a) of the Act.

    Lodging the Revocation Request Form

    If you decide to make representations to the Minister to revoke the mandatory cancellation of your 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 as this timeframe cannot be extended.”[11]

    [Emphasis and underlining in original]

    [11] Section 501G Documents, G16, page 88.

19. There is no requirement on the Respondent Minister to demonstrate – from his/her own records – precisely when the notice was sent (irrespective of the date on the notice). Regulation 2.55(7) resolves the date of receipt of the notice. This is because Regulation 2.55(7)(a) deems the Applicant to have received the invitation seven working days after the date of the notice, which is dated 7 November 2018. Seven working days after that date is 16 November 2018. The last day for the Applicant to make the representations was 28 days after he is deemed to have received the notice. Pursuant to Regulation 2.52(2)(b), the addition of 28 days to 16 November 2018 provides a deadline for making the representations of 14 December 2018.

20. The Applicant’s representations were not made until 27 December 2018. The material forwarded on 27 December 2018 at 3:52pm from the Applicant to the Respondent Minister contained a copy of the above mentioned notice of visa cancellation dated 7 November 2018 which included the invitation to the Applicant to make the necessary representations. On the copy provided by the Applicant there are hand-written words, which were highlighted by a large arrow, to this effect: ‘I got this on 18-11-2018’.[12]

    [12] Respondent’s Tender Bundle, TB6, page 342.

21. This contention is inconsistent with the date on which he signed the revocation request.[13] Be that as it may, even if one accepts the Applicant’s contention about 18 November 2018 comprising the date of his receipt of the notice; the last day for him to make the representations would have been, at first blush, 16 December 2018, that date being 28 days after 18 November 2018.

    [13] That date being 17 November 2018 – see G Documents, G17 page 92.

22. For present purposes, it is important to note that 16 December 2018 fell on a Sunday. In those circumstances, s36(2) of the Acts Interpretation Act 1901 (Cth) operates to effectively deem the following day, Monday, 17 December 2018, as the last day for the Applicant to make the representations. In the final analysis, it is clear the Applicant:

    (i)failed to make the necessary representations within the requirements of Regulation 2.52(2)(b); and, consequently,

    (ii)failed to make his representations in accordance with the Respondent Minister’s invitation dated 7 November 2018 pursuant to s501CA(4)(a) of the Act.

    What can the Tribunal now do?

23. Section 501CA(4)(a) is the gateway provision for the Tribunal’s exercise of the discretion to revoke the mandatory cancellation decision pursuant to s501CA(4)(b). Exercise of the power to revoke is predicated on the Tribunal’s satisfaction that the Applicant has first made representations in accordance with the Respondent Minister’s invitation.

24. Despite the fatal defect in the delegate’s decision now sought to be reviewed, it still comprises a decision in fact. There is a line of authority supportive of the proposition that despite such a defect(s), the Tribunal nevertheless has jurisdiction to conduct the review. The significant point to be taken from this line of authority is that the Tribunal’s powers of review are governed by its defined statutory authority to conduct the review.

25. In Collector of Customs (NSW) v Brian Lawler Automotive Pty Ltd [1979] FCA 21 (“Brian Lawler”), the Collector made a reviewable decision without statutory authority to do so. The absence of statutory authority empowering the Collector to make the decision did not deprive the Tribunal of its review function deriving the Tribunal of its review function deriving from s44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”). There being no precursor or preconditional element on its review function, the Tribunal set aside the Collector’s decision resulting in the restoration of the previously revoked licence.

26. Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906 (“Yilmaz”) was concerned with whether the Refugee Review Tribunal (“RRT”) had power to review a delegate’s decision where an applicant had not met the statutory requirements for the making of an application for a protection visa. Upon application of the decision in Brian Lawler the Court found the RRT did have the power to entertain and decide the original decision. The distinguishing feature of Yilmaz from the instant facts is that the RRT’s power to review was not preconditioned by a statutory requirement for the Applicant to have validly applied for a protection visa, that being a matter that could have been completed or cured later.

27. Minister for Immigration and Multicultural Affairs v Li [2000] FCA 495 (“Li”) concerned the status of another decision brought before the RRT for review. Regulation 2.10(1)(b) applied to operatively affect the RRT’s power to review because it mandated the provision of certain additional information to the Respondent Minister prior to finalisation of any reviewable decision that could be entertained for review by the RRT. Differently to Yilmaz, provision of this information could not have been completed later, that is, after the RRT’s decision. In identical fashion to the instant facts, provision of the additional information to the Respondent Minister preconditioned the RRT’s power to review the subject decision.

28. Zubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 (“Zubair”) dealt with (inter alia) the validity of a decision of the Migration Review Tribunal (“MRT”) made in the absence of meeting mandatory procedural requirements. The Full Court held the MRT did have power to entertain and determine the application on the basis that the absence of compliance with the mandatory procedural requirements was a defect that could be cured by the MRT upon its review of the subject decision. Compliance with those requirements did not precondition the MRT’s power upon review.

29. In Minister for Immigration and Multicultural Affairs v Ahmed [2005] FCAFC 58 (“Ahmed”) the question before the Full Court involved a determination of whether accepted inadequacies in the meeting of notification requirements pursuant to s119 of the Act effectively relegated the Tribunal’s function on review to a determination of whether those notification shortfalls resulted in the delegate not having the necessary power to cancel pursuant to s116 of the Act. The Full Court determined that any compliance with the notification requirements pursuant to s119 did not precondition the exercise of the delegate’s cancellation power under s116 of the Act and thus did not impugn it. Further, the Full Court thought that a delegate’s decision affected by a failure to meet notification requirements pursuant to s119 was of no greater moment to the Tribunal’s review function than, for example, an Applicant’s claim of a denial of procedural fairness by the delegate.

1. The Respondent Minister’s contention is thus correct: there is a critical difference between Yilmaz, Zubair and Ahmed on the one hand, and Li and the instant facts on the other. In the former category of cases, defects in the primary decisions sought to be reviewed did not affect or preclude the Tribunal’s power to review. This is primarily because (1) there was scope for subsequent curing of the defect(s) (as in Yilmaz and Zubair) or (2) the status or impacts of the defect(s) was not of a preconditional nature to the Tribunal’s review function and thus did not threaten or fatally impugn the Tribunal’s capacity to conduct the review (Ahmed).

2. In Li and the instant facts, there are clearly discernible requirements that were not met before the matter reached the Tribunal. Those requirements are not capable of any subsequent curative solution because they directly precondition the Tribunal’s capacity to conduct its review function. For present purposes, the requirement to make representations in accordance with the invitation directly preconditions the Tribunal’s power to revoke the mandatory cancellation decision pursuant to s501CA(4) of the Act.

   Is the Respondent Minister estopped from contending that the Tribunal cannot proceed with the review of the substantive application?

3. The question is this: can it now be asserted that this Tribunal does not have legal capacity to proceed with the review of the substantive application pursuant to s501CA(4) of the Act in circumstances where the decision (sought to be reviewed) has already been made by the delegate?

4. There is a defined line of both High Court and Federal Court authority militating against that proposition. To allow the successful propounding of an estoppel in those circumstances would (1) grant an imprimatur to the Respondent Minister to act beyond power and (2), as a corollary, preclude the Respondent Minister from denying such he/she had so acted.

5. As observed by Gummow J in Minister for Immigration; Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 (“Kurtovic”):

   “…

   Any doctrine of estoppel in that context would threaten to undermine the doctrine of ultra vires by enabling public authorities to extend their powers both de facto and de jure by making representations beyond power, which they would then be estopped from denying.”[14]

   [14] At paragraph [108].

6. Similarly, in Formosa v Secretary, Department of Social Security (1988) 81 ALR 67 (“Formosa”), the Department of Social Security was not estopped or prevented from reviewing a decision relating to whether an application for aged pension had been made orally when there was a legislative requirement that such application should have been received in writing. A subsequent application of Formosa by the Full Court in Roberts v Repatriation Commission (1992) 111 ALR 436 (“Roberts”) added the dimension of protecting the public interest in circumstances where public authorities can avail themselves of an estoppel to extend their powers, noting that:

   “…based upon a balancing of the elements of the public interest, by which the Executive could, by being bound to a representation it had itself made, act beyond the power conferred upon it by Parliament…”[15]

   [15] See paragraph [442] of Roberts.

7. Similarly again, in Comcare v Heffernan [2011] FCAFC 131, (“Heffernan”), an estoppel was found to be not available to Comcare in circumstances where it commenced and continued to regularly compensate an applicant pursuant to a defined formula but then received subsequent legal advice to the effect that those payments had been based on an incorrect interpretation of the legislation. In determining that the new interpretation in the legal advice was correct, the Full Court held that there can be no estoppel to preclude a statutory authority from performing its public duties other than in accordance with its statutorily mandated powers.[16] Importantly for present purposes, the observation was made in Heffernan that any validly propounded estoppel in these circumstances must be limited to areas of discretion. In the instant case, the requirement to (1) make representations and (2) to do so in a prescribed manner is a matter governed by duly mandated legislative intent. It is in no way discretionary.

   [16] Per Bromberg and Marshall JJ at paragraph [26].

   CONCLUSION

8. I have earlier concluded that the requirement to make representations in accordance with the invitation directly preconditions the Tribunal’s power to revoke a mandatory cancellation decision pursuant to s501CA(4) of the Act. Having regard to the abovementioned authorities dealing with estoppel, I further conclude that this Tribunal is not estopped from performing its review duties according to law on the basis that it is somehow bound by the invalid decision made by the delegate.

9. There is a ready acknowledgement from the Respondent Minister:

   “…that the delegate accepted the applicant’s representations and made a decision not to revoke the cancellation of the visa pursuant to s501CA(4) of the Act, and proceeded on the basis the condition in 501CA(4)(a) was satisfied.”[17]

   [17] Respondent’s SFIC, page 7, paragraph [25].

10. While this is clearly a matter of regret, it does not provide an imprimatur for this Tribunal to act beyond its jurisdictional power in circumstances where the Applicant’s non-compliance with s501CA(4)(a) is plain and otherwise incapable of subsequent cure.

11. Accordingly, while the Tribunal has jurisdiction to receive and entertain the Applicant’s non-revocation decision made pursuant to s501CA(4) of the Act, the Tribunal is statutorily precluded from disturbing the operative effect of that decision.

    DECISION

12. The Tribunal’s power to revoke the Respondent Minister’s original visa cancellation decision made pursuant to s501(3A) of the Act is not enlivened. Accordingly, the only course open to the Tribunal is to affirm the decision made pursuant to s501CA(4) of the Act presently before the Tribunal.

I certify that the preceding 41 (forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 29 April 2020

Date of hearing:	20 April 2020
Representative for the Applicant:	Self-represented, by telephone
Solicitors for the Respondent	Mr Karwan Eskerie, by video conference Sparke Helmore Lawyers