EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 27 September 2021
• Neutral Citation: [2021] FCAFC 173
• Date: 27 September 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

Review of:	Application for judicial review of the Administrative Appeals Tribunal decision delivered on 23 October 2021 by Senior Member Linda Kirk
File number:	NSD 1185 of 2020
Judgment of:	YATES, GRIFFITHS and MOSHINSKY JJ
Date of judgment:	27 September 2021
Catchwords:	MIGRATION – judicial review of decision of Administrative Appeals Tribunal holding that it did not have jurisdiction to review decision not to revoke visa cancellation decision under s 501CA(4) of Migration Act 1993 (Cth) – where representations were not “received” by Minister within 28 days under r 2.55 of Migration Regulations 1994 (Cth) – where Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 held “made representations” means “dispatched” – whether Stewart “plainly wrong” – consideration of “plainly wrong” where issue concerns matter of statutory construction by recent Full Court – Stewart not plainly wrong – where notification letter incorrectly stated representations must be “received” within 28 days – where letter analogous to Stewart – where Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 388 ALR 351 held notification letter must crystallise time period for making representations expressly or by reference to correct objective facts – notification letter did not meet requirements of s 501CA(3) – jurisdictional error by Tribunal – held: Tribunal’s decision quashed ; CONSTITUTIONAL LAW – s 116 of the Constitution –whether Part 9.2 of the Act invalid for prohibiting free exercise of religion – consideration of purpose of Part 9.2 – held: no invalidity ; CONSTITUTIONAL LAW – whether applicant not an “alien” and therefore not subject to operation of Act – applicant’s experience or perceptions of alienage irrelevant ; CONSTITUIONAL LAW – whether s 501CA of the Act infringes alleged implied Constitutional right to natural justice – natural justice arises from statutory implication or common law – argument patently weak – unnecessary to decide given success on non-Constitutional point ; MIGRATION – whether failure to establish evidence of service of enclosures to notification letter in breach of s 501CA(3)(a) of the Act – statutory requirement only to provide “particulars” of relevant information – claim rejected
Legislation:	Constitution ss 55(xix), 116 Federal Court of Australia Act 1976 (Cth) s 20(1A) Migration Act 1958 (Cth) Pt 9, ss 198(2B), 501, 501CA Migration Regulations 1994 (Cth) rr 2.52, 2.55
Cases cited:	Attorney-General (Vic); Ex rel Black v Commonwealth [1981] HCA 2; 146 CLR 559 Babington v Commonwealth [2016] FCAFC 45; 240 FCR 495 BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91 Chetcuti v Commonwealth [2020] HCA 42; 385 ALR 1 Chetcuti v Commonwealth of Australia [2021] HCA 25 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1 EUF20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 436 ICM Agriculture Pty Ltd v Commonwealth [2009] HCA 5; 240 CLR 140 Kioa v West [1985] HCA 1; 159 CLR 550 Kruger v Commonwealth [1997] HCA 27; 190 CLR 1 Law v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1726 Love v Commonwealth; Thoms v Commonwealth [2020] HCA 3; 375 ALR 597 Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 388 ALR 351 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v FAK19 [2021] FCAFC 153 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Plaintiff S10/2011 v Minister for Immigration and Citizenship [2012] HCA 31; 246 CLR 636 Pochi v MacPhee [1982] HCA 60; 151 CLR 101 Re GCRM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4850 Re Minister for Immigration and Multicultural Affairs; Ex parte Te [2002] HCA 48; 212 CLR 162 Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 Santhirarajah v Attorney-General (Cth) [2012] FCA 940; 206 FCR 494 Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 Telstra Corporation Ltd v Treloar [2000] FCA 1170; 102 FCR 595 Transurban City Link Ltd v Allan [1999] FCA 1723; 95 FCR 553 Zhang v Commissioner of Police [2021] HCA 16; 389 ALR 363
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	72
Date of hearing:	3 May 2021, 20 August 2021
Counsel for the Applicant:	Mr P King
Solicitor for the Applicant:	Malik Lawyers
Counsel for the First Respondent:	Mr C Lenehan SC with Mr G Johnson
Solicitor for the First Respondent:	Sparke Helmore Lawyers

ORDERS

		NSD 1185 of 2020
BETWEEN:	EPL20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent

order made by:	YATES, GRIFFITHS and Moshinsky JJ
DATE OF ORDER:	27 September 2021

THE COURT ORDERS THAT:

1. The second respondent’s decision dated 23 October 2020 be quashed.

2. The coming into effect of Order 1 be delayed until:

   1. the expiry of the period within which to seek special leave to appeal to the High Court of Australia from these orders; or

   2. (if an application for special leave to appeal is made) the determination of the application for special leave to appeal filed by the first respondent; or

   3. (in the event that special leave to appeal is granted) the determination by the High Court of Australia of the appeal.

3. Unless the applicant or first respondent takes steps in accordance with Order 4, the first respondent pay one-half of the applicant’s costs, as agreed or taxed.

4. Within one week hereof, if the applicant or first respondent opposes Order 3:

(a) the opposing party has leave to file and serve written submissions, not exceeding two pages in length, as to why a different costs order should be made;

(b) the other party has leave to file and serve any written submission in reply, not exceeding two pages in...