On a proper construction of the Migration Act, 1958 (Cth), is the Minister permitted to issue a second invitation to a person to make representations under s 501CA of the Migration Act, 1958 (Cth)?
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91 (7 June 2021)
Intro:-
The sole issue in this appeal is whether the Minister can issue a second invitation to a person under s 501CA(3)(b) of the Migration Act 1958 (Cth) outside the period of 28 days provided in reg 2.52(2)(b) of the Migration Regulations 1994. The primary judge found that the Minister did not have power to issue a second invitation, but that, if the Minister did have such power, his decision made on 24 April 2020 under s 501CA(4) not to revoke the earlier cancellation, mandated by force of s 501(3A), of the appellant’s Class XB Subclass 202 (Global Special Humanitarian) visa on 22 June 2017, was affected by jurisdictional error and should be set aside.
Facts:-
The appellant was serving an aggregate sentence of seven years and three months imprisonment for two convictions for sexual intercourse without consent that the District Court of New South Wales had imposed on 12 March 2015.
On 22 June 2017:
- a delegate of the Minister cancelled the appellant’s visa pursuant to s 501(3A) based on the appellant’s then imprisonment and his substantial criminal record, being the sentence of more than 12 months imprisonment (s 501(7)(c));
- the delegate wrote to the appellant (the June 2017 letter) at Bathurst Correctional Centre (Bathurst jail) and informed him of, first, the cancellation of his visa, secondly, the information comprising the judge’s sentencing remarks, a conviction, sentences and appeals report from the prison authority dated 21 June 2017, thirdly, his right to make representations to the Minister to revoke the mandatory cancellation of his visa, fourthly, the terms of reg 2.52 and that it was essential that the appellant complete and lodge the enclosed revocation request form within 28 days after he was taken to have received the June 2017 letter. The letter enclosed a copy of Direction 65 made under s 499 of the Act and told the appellant that he should address each paragraph in Part C; and
- the appellant received the June 2017 letter in prison. He rang his mother that day to tell her about it.
Accordingly, under reg 2.52, the appellant had until 20 July 2017 to make any representations in response to the invitation under s 501CA(3)(b).
On 24 June 2017, the mother travelled to Bathurst jail. She collected the June 2017 letter and attachments from her son.
On 27 June 2017, the mother attended an appointment at the Sydney office of Legal Aid on 27 June 2017 where an officer of Legal Aid interviewed her. The mother then went about obtaining documents, including references from family members and others, while keeping in touch with the officer.
On 18 July 2017, the mother attended the office of Legal Aid to ascertain the status of the revocation application for the appellant. She was told that the officer would email, rather than mail, the application to the Department. However, as the primary judge found, the officer only emailed the application to the Department on 4 September 2017, for reasons that did not appear in the evidence.
On 5 September 2017, the Department acknowledged receiving the application on the previous day but informed the appellant that the Minister could not consider it because the representations had been made after the 28 day period for doing so had expired.
On 14 November 2017, following further correspondence, the Department wrote to the appellant informing him that it had “determined” that the application was too late and the Minister could not consider it.
On 23 November 2017, the appellant sought review of the “decision” of 14 November 2017 in the Administrative Appeals Tribunal. The Tribunal subsequently made directions for the parties to file submissions as to its jurisdiction to conduct such a review. Before the time for the Minister to file his submissions, a solicitor acting for him had a telephone conversation with the appellant’s solicitor. During their conversation the Minister’s solicitor discussed a proposal that the appellant withdraw the application for review “because the Minister’s Department had accepted that the representations had been made within time”.
On 23 March 2018, the Department wrote to the appellant informing him that it considered that he had made representations in accordance with the invitation in the June 2017 letter and that he would be notified when a decision had been made about whether the cancellation of his visa would be revoked. As a consequence, he withdrew the application to the Tribunal.
On 1 February 2019, the appellant’s solicitor emailed the Department to enquire about progress of the revocation application. The Department replied by email on 1 February 2019 saying that its assessment of cases under s 501 was currently taking a significant time and that it could not provide any indication of when the appellant’s case would be finalised.
On 11 April 2019, the Department wrote to the appellant and his solicitor (the April 2019 letter). The April 2019 letter stated that:
- the June 2017 letter had notified the appellant of the cancellation of his visa under s 501(3A) and invited him to make representations about the revocation of the cancellation pursuant to s 501CA(3);
- the Department had received the appellant’s representations on 13 November 2017;
- it attached a personal circumstances form that he should complete and return;
- the Department had received, and invited his comments on, further information which might be taken into account when making a decision under s 501CA(4), being a national criminal history check issued on 5 March 2019;
- it attached a copy of Direction 79, made under s 499 of the Act, which had replaced Direction 65 on 28 February 2019, and told him that he should address each paragraph in Part C of the new Direction, adding that the amendments emphasised that crimes of a violent nature against women or children were viewed very seriously regardless of the sentence imposed;
- any response to the April 2019 letter had to be received by the Department within 28 days after the appellant received it, which would be taken to have been on the same day.
On 8 May 2019, the appellant’s solicitor responded to the April 2019 letter providing his representations and saying that he was doing so “pursuant to s 501CA”.
The Minister’s decision
On 24 February 2020, the Minister made a statement of reasons for his decision not to revoke the cancellation of the visa in which he said:
"[The appellant] 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 appellant] 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 appellant] has made representations in accordance with the invitation, as required under s501CA(4)(a) of the Act."
On 17 March 2020, the appellant filed his originating application seeking constitutional writ relief against the Minister’s decision.
On 29 June 2020, about 3 weeks before the hearing was listed before the primary judge, the Minister first gave notice that he now considered, and would contend to his Honour, that because the appellant had not made his representations within 28 days of receipt of the June 2017 letter, the Minister had no power to deal with those representations. As the primary judge noted, that attitude was completely at odds with the Minister’s position that had obtained since 23 March 2018.
Issue:-
Can the Minister issue a second invitation to a person under s 501CA(3)(b) of the Migration Act 1958 (Cth) outside the period of 28 days provided in reg 2.52(2)(b) of the Migration Regulations 1994?
Analysis:-
To start with the text of the section, s 501CA(1) and s 501CA(2) define the 'original decision' and the concept of 'relevant information'. The original decision is one under s 501(3A) which imposes on the Minister a mandatory requirement to cancel a person's visa if the Minister is satisfied that the person does not pass the character test in certain ways. Section 501CA(3) requires the Minister then to communicate two things 'as soon as practicable after making the original decision' to the person whose visa has been cancelled.
Section 501CA(3) thus identifies a time within which the communication must occur. The question of when that time expires - when it first becomes practicable to make the communication - may be an evaluative one which could vary depending on the specific facts of the case. It is also, no doubt, one which does not require absolute precision in the answer. But whatever the time in a particular case, it remains tethered to a single and clearly identifiable event from which it is calculated: the making of the original decision. And it is a time that occurs 'as soon as' the condition of practicability becomes fulfilled. If follows that whatever time is 'as soon as practicable' after that event, it is a time which occurs once. The soonest time that it is practicable is by definition a single time, and not one that can reoccur.
The two things that the Minister must do by that time are to give the person certain information about the original decision and to invite the person to make representations to the Minister. The invitation must be an invitation to make those representations within a certain period and in a certain manner, both ascertained in accordance with the regulations. Section 501CA(3) as a whole indicates that the time for both the Minister's obligation to make the invitation and the person's ability to respond to the invitation are not open ended. On its face, no discretion is conferred on the Minister about the period for the taking of either of those steps, other than whatever scope he may have in practice to determine when it is 'as soon as practicable after making the original decision'. Perhaps further discretion could have been conferred by way of the period prescribed in the regulations, but it has not been; the representations must be made within 28 days after the person is given the notice of the original decision and particulars of relevant information: Migration Regulations 1994 (Cth) reg 2.52(2)(b). The Minister has no power to change that.
Then, s 501CA(4) confers a power on the Minister to revoke the original decision. On its face the power can only be exercised if two preconditions are both fulfilled. The first is that the person has made 'representations in accordance with the invitation': s 501CA(4)(a). The second is that the Minister is satisfied either that the person passes the character test or that there is another reason why the original decision should be revoked: s 501CA(4)(b). These are expressed as necessary preconditions to the existence of the Minister's power to revoke the original decision. The power arises 'if' the matter stated in s 501CA(4)(a) has occurred and 'if' the Minister is satisfied as to one (or both) of the requirements in s 501CA(4)(b). In context, the 'if' must mean 'only if'. It is not to be supposed that the Minister may revoke the cancellation - a cancellation the statute requires him to effect - if no representations are made. The appellant thus accepted that s 501CA(4)(a) established an objective jurisdictional fact.
The singular nature of that invitation, that is, the fact that the legislation does not contemplate that there might be more than one, is confirmed by the requirement that the invitation be given as soon as - at the earliest time after - the happening of the singular event of the making of the original decision.
On the Court's preferred construction of s 501CA, it is an incident of the power to issue an invitation to make representations that it may only be exercised once. The 'occasion requires' at the time that is as soon as practicable after the making of the original decision, and not at any time thereafter.
Conclusion:-
The case here is a hard one. The initial problem was caused not by the appellant but by the unexplained omission of his legal adviser to make the representations within time. Then, the Department raised false hopes in purporting to solve the problem by exercising a power it did not have, and later changed its position so as to take those hopes away. But thourt is compelled to agree with the Minister that he does not have that power, so that the appeal must be dismissed.
The Minister did not seek to disturb the primary judge's finding that in view of the Minister's conduct, the justice of the case required an order that the Minister pay the applicant's (now appellant's) costs of the application. But the Minister did seek the costs of the appeal. In our view the same considerations of justice identified by the primary judge apply to the prosecution of the appeal. There will be an order that the Minister pay the appellant's costs of the appeal.
