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

• Jurisdiction: Australia Federal only
• Judgment Date: 01 February 2022
• Neutral Citation: [2022] FCA 34
• Court: Federal Court
• Date: 01 February 2022

Federal Court of Australia

CHVS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 34

Appeal from:	Administrative Appeals Tribunal decision delivered on 31 May 2018 by Senior Member D. J. Morris
File number(s):	SAD 45 of 2021
Judgment of:	KERR J
Date of judgment:	1 February 2022
Catchwords:	MIGRATION – application for an extension of time to appeal decision of the Administrative Appeals Tribunal (Tribunal) dismissing the Applicant’s application for want of jurisdiction – Tribunal without jurisdiction because notification earlier given pursuant to s 501CA(3)(b) of the Migration Act 1958 (Cth) invalid – application dismissed ; PRACTICE AND PROCEDURE – whether declaration appropriate – declaration made to quell the controversy in the proceeding and to avoid any multiplicity of proceedings by making clear the basis of Court’s findings regarding the Tribunal’s want of jurisdiction
Legislation:	Federal Court Act 1976 (Cth) ss 21, 22 Migration Act 1958 (Cth) ss 476A(1), 500, 500(1)(ba), 500(4A), 501(3A), 501(6)(a), 501(7)(c), 501CA, 501CA(3)(b), 501CA(4) Migration Regulations 1994 (Cth) reg 2.52(2)(b) ; Pearce D, Administrative Appeals Tribunal (5th ed, LexisNexis, 2020)
Cases cited:	Collector of Customs v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307 EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 Gates v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 139 Liversidge v Anderson [1942] AC 206 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 PYDZ v Minister for Immigration, Migrant Services and Multicultural Affairs [2021] FCA 1050 Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 Yilmaz v Minister for Immigration and Multicultural Affairs [2000] FCA 906; 100 FCR 495
Division:	General Division
Registry:	South Australia
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	120
Date of last submissions:	19 January 2022
Date of hearing:	22 December 2021
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Ms N Wootton
Solicitor for the First Respondent:	Sparke Helmore

ORDERS

		SAD 45 of 2021
BETWEEN:	CHVS Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	KERR J
DATE OF ORDER:	1 FEBRUARY 2022

THE COURT DECLARES THAT:

1. The First Respondent did not perform a duty required by s 501CA(3) of the Migration Act 1958 (Cth) (Migration Act) by purportedly giving the Applicant a notice on 23 May 2018 in relation to a decision made on 22 May 2018 to cancel the Applicant's visa under s 501(3A) of the Migration Act which did not comply with the requirements of reg 2.52(2)(b) of the Migration Regulations 1994 (Cth).

THE COURT ORDERS THAT:

1. The Applicant’s application dated 31 March 2021 for an extension of time to appeal the Administrative Appeals Tribunal decision dated 31 May 2019 be dismissed.

2. There be no order as to costs.

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

REASONS FOR JUDGMENT

KERR J:

Introduction

1. This is an application for an extension of time to appeal a decision of the Administrative Appeals Tribunal (the Tribunal) dated 31 May 2019. I discuss below whether the application should also be construed as including a decision of the Tribunal dated 17 January 2020. The Minister opposes the application and seeks that it be dismissed.

2. These reasons also address issues that came to the attention of the Court regarding the Full Court decisions in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 (EPL20) and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 (Sillars). But for the Minister having advanced the proposition that the application for special leave to appeal those proceedings to the High Court was then a reason to delay the hearing of this proceeding, and contingent actions taken on behalf of the Minister a number of the issues which have required attention in this proceeding would not have required comment.

Background

3. The Applicant was born in Sudan and is aged 39. He spent some time in the Kakuma Refugee Camp in Kenya before travelling to Australia with his family in 1999, having been granted a Class BA Subclass 202 Global Special Humanitarian visa (visa) on 13 May 1999. He has resided in Australia since that time.

4. The Applicant suffered some periods of homelessness in 2014. In 2014 and 2015 he spent some months in prison although the reasons and precise dates are not clear from the materials provided to the Court.

5. In November 2015, the Applicant was arrested and admitted to prison as a result of offences including: Commit Theft Using Force – Aggravated; Fail To Comply with Bail Agreement; Hinder Police; Unlawfully on Premises; and Aggravated Assault W/O Weapon Against Police Officer.

6. On 10 May 2016 the Applicant was convicted of Commit Theft Using Force – Aggravated and sentenced to two years and nine months imprisonment.

7. On 30 April 2018, a Sentence Authority report of the Department of Correctional Services of the Government of South Australia was provided to the First Respondent (the Minister) in response to a request for information. That report notified the Minster of the Applicant’s conviction and imprisonment (SCB pp 6-7).

8. By a letter dated 22 May 2018, the Applicant was either notified or purportedly notified that his visa had been cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) (the cancellation decision). The Applicant was invited to make representations as to whether that decision should itself be revoked. The Applicant was in prison at that time. He was handed the notification and invitation on 23 May 2018. The Applicant refused to sign an acknowledgment of receipt (SCB p 92).

9. On 27 March 2019, the Applicant was released from prison. He has resided at the Melbourne Immigration Transit Accommodation since that time.

10. On...