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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to revoke the mandatory cancellation of the applicant's visa. The applicant, a citizen of the United Kingdom who had resided in Australia since infancy, had a lengthy criminal history. His visa had been mandatorily cancelled on two occasions, with the first cancellation revoked and the second cancellation being the subject of the present review. The applicant sought to make representations to the Minister regarding the second cancellation, but these were made outside the prescribed time limits.

The primary legal issue before the Tribunal was whether the delegate's decision to not revoke the visa cancellation, made after the applicant's representations were submitted out of time, constituted a reviewable decision. This question turned on whether the delegate's consideration of the late representations, despite their untimeliness, had the effect of enlivening the Tribunal's power to review the original cancellation decision. The Tribunal was required to determine if the delegate's actions, in acknowledging and considering the representations, altered the nature of the decision-making process such that it became a new, reviewable decision, or if it remained a decision concerning the original cancellation.

The Tribunal reasoned that for the delegate's decision to be reviewable, it must be a decision made under a specific provision of the *Migration Act 1958* (Cth) that confers jurisdiction on the Tribunal. In this instance, the applicant's representations were made outside the 28-day period prescribed by Regulation 2.52 of the *Migration Regulations 1994* (Cth) for making representations under section 501CA(3)(b) of the Act. While the delegate had considered these late representations, the Tribunal found that this consideration did not transform the delegate's subsequent refusal to revoke the cancellation into a new decision that was subject to review. Instead, the delegate's decision was characterised as a determination that the conditions for revocation under section 501CA(4) had not been met, primarily due to the untimeliness of the representations.

Consequently, the Tribunal concluded that the decision under review was not a reviewable decision. The Tribunal affirmed the original cancellation decision, finding that it lacked jurisdiction to entertain the merits of the applicant's case.