BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

A threshold question 7 In what is sometimes referred to as a point in limine, the Minister submits that his power under s 501CA(4) of the Act was not enlivened in this case because the applicant failed to make representations in accordance with the invitation, i.e. within the 28 day time limit imposed under s 501CA(3)(b) of the Act read with reg 2.52(2)(b) of the Migration Regulations 1994 (Cth). The point is taken by the Minister notwithstanding that in his non-revocation decision he concluded the opposite, namely that "[the applicant] has made representations in accordance with the invitation, as required under s 501CA(4)(a) of the Act". 8 Notice of the threshold point was first given by the Minister by email from the Minister's solicitors on 29 June 2020, some three weeks before the hearing. The Minister did not oppose the applicant filing a late affidavit to respond to the point, and on that basis the applicant did not oppose the point being taken. The applicant, however, submitted that the point should be rejected. 9 The Minister also puts the threshold point on an alternative basis, namely that even if the substantive ground of review concerning failure to have regard to Australia's non-refoulement obligations is otherwise good, which is to say the error alleged is made out, the error is not material and is therefore not jurisdictional error because the Minister would in any event have no power to revoke the cancellation decision. That is because the representations had been made outside of the applicable time limit with the result that the power was not enlivened.

The statutory framework 10 Section 501CA of the Act relevantly provides as follows: (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. 11 Regulation 2.52 of the Regulations relevantly provides as follows: (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) 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 paragraph 501CA(3)(a) of the Act. 12 There is no express power in the Act or in the Regulations to waive or extend the 28 day time period provided for in reg 2.52(2)(b). The Governor-General has the power to make and therefore to amend the Regulations under s 504 of the Act.

Relevant chronology 13 The notice to the applicant advising him of the cancellation of his visa under s 501(3A) of the Act and inviting him to make submissions in support of the revocation of the cancellation is dated 22 June 2017. It is directed to the applicant in the Bathurst Correctional Centre for hand delivery. 14 In a statutory declaration, the applicant's mother stated that on 22 June 2017 the applicant rang her from gaol and told her that he had received a document cancelling his visa and that the document was in his possession. It was thus accepted that time began to run on that day with the result that the 28 day period expired at midnight on 20 July 2017. 15 The applicant's mother travelled to Bathurst and collected the documents from the applicant on 24 June 2017. She arranged, and kept, an appointment with the Legal Aid Sydney office on 27 June 2017. At the appointment, she was interviewed by a legal aid officer whereafter various documents including letters and references from family members and members of the community were assembled. The applicant's mother stated that she kept in constant touch with the legal aid officer. 16 On 18 July 2017, the applicant's mother visited the Legal Aid office to ascertain the status of the application and was told that the legal aid officer would email the application to the Department of Immigration and Border Protection rather than it being mailed to the Department. Unfortunately, and for reasons that are not explored in the evidence, that was not done within the time period. 17 On 4 September 2017, which is to say some six weeks later, the legal aid officer emailed documents to the Department in support of the revocation of the cancellation of the applicant's visa. That was the first response on behalf of the applicant to the invitation to provide submissions in support of revocation. 18 By letter dated 5 September 2017, the Department acknowledged receipt of the emails from Legal Aid on 4 September 2017 but advised the applicant that the representations on his behalf were not made within the prescribed time period with the result that the Minister could not consider revoking the decision to cancel his visa. 19 There followed further correspondence and representations between the applicant and the Department but the latter maintained its position that the submissions had been made out of time and that consideration could therefore not be given to the revocation of the cancellation. The correspondence culminated in a letter from the Department to the applicant dated 14 November 2017 which stated that the Department had "determined" that the applicant's representations were not made within the prescribed time period and that the Minister could therefore not consider revoking the decision to cancel the applicant's visa. 20 As a result, on 23 November 2017 the applicant filed an application in the Administrative Appeals Tribunal (AAT) in which he sought merits review of the decision of 14 November 2017. The matter proceeded in the AAT for a period of time in which the AAT made directions for the filing of submissions by the parties on the question of whether the AAT had jurisdiction to deal with the application. 21 Prior to the Minister's submissions being due to be filed under the directions of the AAT, a representative of the Minister called the applicant's solicitor by telephone to resolve the matter before the AAT by consent. At the hearing in this Court, the parties agreed a factual statement of what took place in that telephone conversation as follows: A solicitor with carriage of the AAT proceedings on behalf of the Minister had a phone call with the applicant's solicitor during which he discussed with the applicant's solicitor withdrawing the applicant's AAT proceeding because the Minister's department had accepted that the representations had been made within time. 22 By letter dated 23 March 2018 and emailed to the applicant on that day, the Department (then styled the Department of Home Affairs) informed the applicant that "[t]he Department considers that you have made representations in accordance with the invitation [of 22 June 2017]", and that the applicant would be notified when a decision had been made about whether or not to revoke the decision to cancel his visa. 23 The applicant accepted what had been said on behalf of the Department and advised the AAT that he wished to withdraw the proceeding in the AAT. By letter dated 9 April 2018, the AAT acknowledged receipt of the withdrawal application and advised that the matter had consequently been dismissed. 24 On 1 February 2019, the applicant's solicitor emailed the Department in which reference was made to the "agreement … to withdraw the application" to the AAT and an update on the progress of the matter was requested. On the same day, the Department replied saying that because of "the care and attention required in assessing cases under section 501 … cases are currently taking a significant amount of time to finalize" and that it was not possible to provide any indicative timeframe with regard to when the matter would be finalised. 25 On 11 April 2019, the Department emailed a letter to the applicant's solicitor. The letter: enclosed a "Personal Circumstances Form" and requested that it be completed and returned; advised that further information which might be taken into account in making the decision whether to revoke the cancellation had been received, namely a National Criminal History Check released on 5 March 2019 which was enclosed with the letter, and invited the applicant to comment on that further information; enclosed the new Direction 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA - which revoked and replaced the previous Direction 65 on 28 February 2019 and requested the applicant to address each paragraph in Part C of Direction 79 that is relevant to his circumstances; specified that any response to the above should be received by the Department no later than 28 days from the date that the applicant is taken to have received the letter. 26 The period of 28 days referred to in the letter of 11 April 2019 expired at midnight on 9 May 2019. On 8 May 2019, the applicant's solicitor emailed a letter, the personal circumstances form duly completed, submissions, character references and other material to the Department in response to the letter of 11 April 2019. It was common ground that that was within the specified 28 day period. 27 As indicated, on 24 February 2020 the Minister decided not to revoke the cancellation of the applicant's visa. The Minister's statement of reasons includes the following: [The applicant] failed to make representations within the prescribed period and sought merits review at the Administrative Appeals Tribunal (AAT); a decision was subsequently made by the department to accept the revocation request and supporting documents were received from [the applicant] on 4 September 2017. These representations were deemed to have been made within the period and in the manner ascertained in accordance with the regulations. Thus, I conclude that [the applicant] has made representations in accordance with the invitation, as required under s501CA(4)(a) of the Act. 28 On 17 March 2020 the originating application in this proceeding was filed, and, as indicated, on 29 June 2020 the Minister first gave notice that he intended to argue that there was no power to revoke the cancellation of the applicant's visa because the applicant had not made representations within the requisite 28 days. 29 This new attitude by the Minister is completely at odds with the position taken on his behalf in settling the AAT proceeding in early 2018 (see [21] above), the position taken by the Department in its letters of 23 March 2018 ([22] above) and 11 April 2019 ([25] above) and the Minister's stated conclusion in his reasons of 24 February 2020 ([27] above).

The submissions 30 The Minister submits that his power to revoke the cancellation of a visa under s 501CA(4) arises only if two criteria are met: first, the applicant "makes representations in accordance with the invitation" (para (4)(a)), and, second, the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked (para (4)(b)). It is the first criterion that is presently relevant. 31 The Minister submits that the first criterion is premised upon a person having made "representations" and that those have "period" and "manner" requirements determined by the regulations, as referred to in s 501CA(3)(b). A failure to comply with the temporal requirement, i.e. to make the representations within the "period" prescribed, would mean that the representations were not made "in accordance with" the invitation with the result that the essential pre-condition for the valid exercise of the power in s 501CA(4)(a) was not met. 32 The Minister refers to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [93] for the proposition that the test for determining the validity of something done contrary to a statutory requirement is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. Further, in determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute. 33 The Minister submits that time limitation provisions ordinarily are interpreted as imposing a mandatory, rather than a directory, obligation and refers to Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths, 2019) at [11.26] and Fernando v Minister for Immigration and Multicultural Affairs [2000] FCA 324; 97 FCR 407 at [31]. 34 The Minister submits that the principal reason for that approach is because where a provision states, for example, that an application is to be commenced within the specified time, and provides no power to extend the time stated, a construction that would permit such an application to be validly commenced in any event effectively renders such a provision otiose: Rail Corporation New South Wales v Brown [2012] NSWCA 296; 82 NSWLR 318 at [42]. 35 The Minister submits that his letter of 22 June 2017 was written notice with particulars as required by s 501CA(3)(a) and an invitation referred to in s 501CA(3)(b) and, as is common ground, it was received by the applicant on 22 June 2017. Thus, the applicant was "given the notice and the particulars" on that day as referred to in reg 2.52(2)(b) and the 28 day time period commenced. Representations were not received until 4 September 2017, well outside the period with the result that the Minister's power was not enlivened. 36 The Minister submits that the fact that he later sought further information from the applicant by the letter dated 11 April 2019 does not impact on that conclusion. That "invitation" was not a notice setting out the original decision with particulars of the relevant information as referred to in s 501CA(3)(a) and could therefore not be regarded as commencing time running under reg 2.52(2)(b). 37 In those circumstances, the Minister submits that the only decision available to him in respect of the applicant's request for revocation was the decision that he in fact made, namely determining not to revoke the original decision. He submitted that any error made in the purported discharge of his function, as alleged by the applicant in his substantive ground of review, could not be a material error in that the error could not "realistically have resulted in a different decision": Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 264 CLR 421 at [45] and [48]. 38 The applicant submits that the letter of 11 April 2019 in which further representations or submissions were sought from him constituted a second invitation which, as it stated, gave him a further 28 days within which to respond. He submits that this was an invitation "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" within the meaning of s 501CA(3)(b) of the Act. He submits that since he responded within the required timeframe, this was an independent basis upon which the condition in s 501CA(4)(a) was met. 39 The applicant also submits that on the principal ground of review no question of jurisdictional error arises, and therefore the Minister's submission with regard to materiality is misplaced. The applicant submits that the question of the Minister's satisfaction as to there being another reason to revoke the cancellation as referred to in s 501CA(4)(b)(ii) is a jurisdictional fact, albeit a subjective jurisdictional fact, so the ground of review does not require the establishment of jurisdictional error. The applicant refers to Ali v Minister for Home Affairs [2020] FCAFC 109 at [39]-[44] in that regard.

Consideration 40 The criterion for the exercise of the Minister's power to revoke a visa cancellation expressed in s 501CA(4)(a) of the Act, i.e. that the person makes representations in accordance with the invitation, is an objective jurisdictional fact: Ali at [40] per Collier, Reeves and Derrington JJ. That is to say, "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": Gedeon v Commissioner of New South Wales Crime Commission [2008] HCA 43; 236 CLR 120 at [43] per Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. 41 With reference to reg 2.52(2)(b), it is to be observed that the period of 28 days within which the representations must be made is calculated with reference to when "the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act". That is to say, it is the giving of "a written notice that sets out the original decision" and "particulars of the relevant information" to the person under paragraph (a) that starts time running, and not the giving of the invitation under paragraph (b). 42 It is possible that the invitation is given separately from and later than the written notice of the decision and the particulars of the relevant information. It is therefore possible that the invitation is given more than 28 days after the written notice of the decision and the particulars of the relevant information. That would make it impossible for the person to respond to the invitation by making representations within the period of 28 days. That would defeat the legislative purpose, which is to give the person the opportunity to make representations in support of the revocation of the cancellation decision, and cannot be regarded to have been intended. 43 Therefore, and since the representations are necessarily made in response to the invitation - that must flow from the requirement that the representations are made "in accordance with the invitation" in s 501CA(4)(a) - time can only start to run once both (a) the notice of the decision and particulars of the relevant information and (b) the invitation to make representations have been given. 44 In this case, that was done by the letter of 22 June 2017 that was received by the applicant that day. It was not contended that that letter did not meet the requirements of s 501CA(3) and I am satisfied that it did. There is therefore no question that time started to run on 22 June 2017, that the 28 day period ended on 20 July 2017 and that representations were not received by the Department until 4 September 2017. 45 I do not see any basis on which it can be concluded that the letter of 11 April 2019 constituted a fresh invitation such as to recommence the running of time and re-enliven the Minister's power. It did not constitute a notice setting out the original decision and it did not give particulars of the relevant information. Indeed, it records in its opening paragraph that notice of the original decision, particulars of the relevant information and an invitation to make representations about the revocation of the original decision were given by the notice dated 22 June 2017. 46 It is perhaps significant that the criterion in s 501CA(4)(a) refers to representations in accordance with "the invitation", not "an invitation". The invitation referred to is the invitation given under s 501CA(3)(b). That invitation was given by the letter dated 22 June 2017. Whilst the letter of 11 April 29 constituted an invitation, it was not "the invitation". I therefore cannot accede to the applicant's invitation to treat the letter of 11 April 2019 as a fresh invitation within the meaning of s 501CA(4)(a) such as to re-enliven the power. 47 The next question is what the consequence is of the failure by the applicant to make representations in time. As identified in Project Blue Sky, the test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute" (at [93] per McHugh, Gummow, Kirby and Hayne JJ quoting Tasker v Fullwood [1978] 1 NSWLR 20 at 24). 48 There are indications in the Act that the time period stipulated for the making of representations under s 501CA(3)(b) is inflexible and requires certainty. For example, under ss 198(2A) and 198(2B) an officer must remove as soon as reasonably practicable an unlawful non-citizen if certain circumstances exist including, relevantly, in a case where the non-citizen has been invited, in accordance with s 501CA, to make representations to the Minister about revocation of a decision to cancel a visa, and the non-citizen has not made representations "in accordance with the invitation and the period for making representations has ended". It 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. 49 Those considerations of certainty are similar to those observed in relation to the consequence of the failure to observe the time periods for applying to review Pt 5 and Pt 7 reviewable decisions in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; 267 FCR 15 at [82] per McKerracher, Reeves and Thawley JJ. It was said to be highly improbable that Parliament intended to allow important removal powers to be defeated by removing fixed periods within which persons can seek merits review. 50 I accept the Minister's submission that in the case of a time limit provision the scope for interpreting it other than as a strict requirement that if not met results in invalidity is generally unavoidable. That is because the obvious purpose of such a statutory rule is to exclude any subsequent exercise of power where the relevant act is done outside the relevant time period - subject to any express or implied discretionary power to extend the time period or excuse the lateness of the relevant act. It was not contended by the applicant that such a power exists in this case, and I can find no basis to conclude that it does. 51 There is plainly a strong case to be made for the introduction of a discretion to extend time in appropriate cases, but that is a matter for Parliament by way of amendment to the Act or the Executive Government by way of amendment of the Regulations. It is not relevant to the task facing the Court. 52 In those circumstances, the inevitable conclusion is that when the 28 day period expired on 20 July 2017 and the applicant had not yet made representations for the revocation of the cancellation of his visa, the power to revoke the cancellation given by s 501CA was spent and it could not be revived by the lateness of submissions being overlooked or by the Minister giving another invitation. 53 That conclusion also deals with the question whether the substantive ground of review in order to succeed must involve jurisdictional error and in that way invoke the materiality requirement discussed in cases such as Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 264 CLR 123 at [30]-[31] and SZMTA at [45] and [48]. Since the Minister lacked jurisdiction to make any decision to revoke the cancellation of the applicant's visa, he could not lawfully have reached any conclusion other than the one that he did, namely that his power to revoke the cancellation was not enlivened. The fact that he made it for the wrong reason, that is to say on the basis of the jurisdictional fiction that s 501CA(4)(a) was satisfied and that the jurisdictional fact in s 501CA(4)(b) was not satisfied does not make any difference - he simply lacked the power to do anything other than to, in effect, reject the application which is what he did.

The substantive ground of review 54 In view of my conclusion on the threshold question, it is not necessary to deal with the substantive ground in any detail. 55 The applicant claimed in his representations to the Minister that if he was returned to Sierra Leone he feared he would be harmed and that doing so would be in breach of Australia's non-refoulement obligations. However, the Minister did not make findings on the issue of non-refoulement. Instead, the Minister reasoned that a protection visa application is a key mechanism provided by the Act for considering claims by a non-citizen that they would suffer harm if returned to their home country and that any such claim by the applicant could be fully considered through the making of a protection visa application. 56 In my view, as in Ali (at [99]), whilst the Minister considered the level of harm faced by the applicant should he be returned to Sierra Leone, at no stage was there any consideration of which, if any, non-refoulement obligations was owed in respect of the applicant by reason of s 36(2) of the Act or any wider obligation, and nor was there any consideration of the consequences of returning the applicant to Sierra Leone in breach of Australia's treaty obligations. I do not find Ali to be relevantly distinguishable, as submitted by the Minister. 57 Thus, but for my conclusion on the threshold question, I would have quashed the Minister's decision and returned it to him for reconsideration.

Conclusion and costs 58 In the circumstances, however unpalatable it might seem in the light of the Minister's last minute volte-face and the hardship wrought on the applicant, there is no alternative than to dismiss the application. 59 Due to the conduct of the Minister, through his Department, settling the AAT proceeding on the basis that the applicant's representations would be accepted, the acceptance of those representations as having been made within time and the raising of the threshold question only on the eve of the final hearing, in my view justice in this case requires that the Minister pay the applicant's costs of the application notwithstanding the substantive result - if the Minister had taken and maintained the correct legal position in relation to his powers from the outset the application, at least in its present form, would never have been brought. The Minister did not put any submissions to the contrary. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart.