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

• Jurisdiction: Australia Federal only
• Judgment Date: 07 June 2021
• Neutral Citation: [2021] FCAFC 91
• Date: 07 June 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91

Appeal from:	BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176
File number(s):	NSD 1001 of 2020
Judgment of:	RARES, BANKS-SMITH AND JACKSON JJ
Date of judgment:	7 June 2021
Catchwords:	MIGRATION – appeal from decision dismissing application for judicial review – decision by Minister not to revoke mandatory cancellation of appellant's visa under s 501CA of the Migration Act 1958 (Cth) – appellant made representations out of time – Minister accepted that representations were made within time but later said that they were not – held: proper construction of Migration Act does not permit Minister to issue a second invitation to a person to make representations under s 501CA – appeal dismissed
Legislation:	Acts Interpretation Act 1901 (Cth) ss 2, 15AB, 23, 33 Migration Act 1958 (Cth) ss 4, 13, 15, 189, 198, 418, 424A, 476A, 500, 501, 501A, 501C, 501CA, 501E, 501F, 501G, 501HA Migration Regulations 1994 (Cth) reg 2.52
Cases cited:	Ali v Minister for Home Affairs (2020) 380 ALR 393 Allsop v Incorporated Law Institute (1944) 44 SR (NSW) 132 Australian Securities and Investments Commission v DB Management Pty Ltd (2000) 199 CLR 321 Beni v Minister for Immigration and Border Protection (2018) 267 FCR 15 Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619 Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 Lawrie v Lees (1881) 7 App Cas 19 Minister for Home Affairs v Brown [2020] FCAFC 21; (2020) 275 FCR 188 Minister for Immigration & Multicultural & Indigenous Affairs v Watson [2005] FCAFC 181; (2005) 145 FCR 542 Minister for Immigration and Border Protection v Makasa [2021] HCA 1; (2021) 386 ALR 200 Minister for Indigenous Affairs v MJD Foundation Ltd (2017) 250 FCR 31 Pfeiffer v Stevens [2001] HCA 71; (2001) 209 CLR 57 Plaintiff M79/2012 v Minister for Immigration and Citizenship [2013] HCA 24; (2013) 252 CLR 336 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252 Scarfe v Federal Commissioner of Taxation (1920) 28 CLR 271 Snedden v Minister for Justice (2014) 230 FCR 82 SZOIN v Minister for Immigration and Citizenship [2011] FCAFC 38; (2011) 191 FCR 123 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Uebergang v Australian Wheat Board (1980) 145 CLR 266 Vines v Djordjevitch (1955) 91 CLR 512
Division:
Registry:
National Practice Area:
Number of paragraphs:	120
Date of hearing:	4 February 2021
Counsel for the Appellant:	Mr N Wood
Solicitor for the Appellant:	Oumaru Kamara & Associates
Counsel for the Respondent:	Mr C Lenehan SC and Ms C Ernst
Solicitor for the Respondent:	Sparke Helmore

ORDERS

		NSD 1001 of 2020
BETWEEN:	BDS20 Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS Respondent

order made by:	RARES, BANKS-SMITH AND JACKSON JJ
DATE OF ORDER:	7 JUNE 2021

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The respondent pay the appellant's costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RARES J:

1. 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.

The statutory context

2. Relevantly, s 501(3A) requires the Minister to cancel the visa of a person if he or she is serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory, and the Minister is satisfied that the person does not pass the character test because of his or her substantial criminal record (within the meaning of s 501(6)(a) and (7)(a), (b) and (c)) or a conviction or finding of guilt in an Australian or foreign court of one or more sexually based offences involving a child.

3. Once such cancellation occurs under s 501(3A), the Minister must act under s 501CA that provides:

501CA Cancellation of visa-revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(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.

(5) If the Minister revokes the original decision, the original decision is taken not to have been made.

(6) Any detention of the person that occurred during any part of the period:

(a) beginning when the original decision was made; and

(b) ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

(bold emphasis added; italic emphasis in original)

4. Regulation 2.52(2)(b) provides that representations under s 501CA(3)(b) must be made within 28 days after the person is given the notice and the particulars of relevant information under s 501CA(3)(a).

5. The Acts Interpretation Act 1901 (Cth) applies to all Acts, unless a provision of an Act is subject to a contrary intention (s 2(2)). It provides that, in any Act, words in the singular number include the plural and vice versa (s 23(b)). Importantly...