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

• Jurisdiction: Australia Federal only
• Judgment Date: 27 September 2021
• Neutral Citation: [2021] FCAFC 174
• Date: 27 September 2021
• Court: Full Federal Court (Australia)

Federal Court of Australia

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174

Appeal from:	Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313
File number:	NSD 1301 of 2020
Judgment of:	YATES, GRIFFITHS AND MOSHINSKY JJ
Date of judgment:	27 September 2021
Catchwords:	MIGRATION – appeal from a decision of a single Judge of the Federal Court of Australia dismissing the appellant’s application for judicial review of a decision of the Administrative Appeals Tribunal – where Administrative Appeals Tribunal upheld a decision of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs under s 501CA(4) of the Migration Act 1958 (Cth) to refuse to revoke the cancellation of the appellant’s visa – meaning of the words “given the notice” in reg 2.52(2)(b) of the Migration Regulations 1994 (Cth) – whether invitation given to appellant under s 501CA(3)(b) of the Act inconsistent with the requirement of reg 2.52(2)(b) - whether reg 2.55 or reg 5.02 applied to the giving of the invitation – whether the appellant was in immigration detention at the time the invitation was given – whether the invitation was invalid in light of Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 338 ALR 351 and Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 – whether the appellant had “made” his representations to the Minister within 28 days
Legislation:	Migration Act 1958 (Cth) ss 189(1), 476A, 501CA Federal Court Rules 2011 (Cth) r 36.05 Migration Regulations 1994 (Cth) regs 1.09, 2.25(2)(b), 2.52(2)(b), 2.55(2)(b), 2.55(3)(c), 2.55(7)(a), 5.02 Periodic Detention of Prisoners Act 1981 (NSW) s 4
Cases cited:	Falzon v Minister for Immigration and Border Protection [2018] HCA 2; 262 CLR 333 Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 338 ALR 351 Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
Division:	General Division
Registry:	New South Wales
National Practice Area:	Administrative and Constitutional Law, Human Rights
Number of paragraphs:	64
Date of hearing:	3 May 2021, 20 August 2021
Counsel for Appellant:	Mr G Foster
Solicitor for Appellant:	Zali Burrows Lawyers
Counsel for First Respondent:	Mr C Lenehan SC Mr G Johnson
Solicitor for First Respondent:	Sparke Helmore

ORDERS

		NSD 1301 of 2020
BETWEEN:	ANDREW ALEXANDER SILLARS Appellant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL SERVICES 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 appeal be allowed.

2. Order 1 made in NSD 628 of 2020 on 15 September 2020 be set aside.

3. The second respondent’s decision dated 29 April 2020 be quashed.

4. The coming into effect of Order 3 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;

   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.

5. Unless the appellant or first respondent take steps in accordance with Order 6, the first respondent pay two-thirds of the appellant’s costs of the appeal, as agreed or taxed.

6. Within one week hereof, if the appellant or the first respondent opposes Order 5:

   1. 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;

   2. the other party has leave to file and serve any written submissions in reply, not exceeding two pages in length, within five business days after any submissions are filed in accordance with Order 6(a); and

   3. the issue of costs will otherwise be determined on the papers.

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

REASONS FOR JUDGMENT

THE COURT:

1. This proceeding initially came before the Full Court as an application, pursuant to r 36.05 of the Federal Court Rules 2011 (Cth), for an extension of time within which to file a notice of appeal from a judgment which dismissed the appellant’s application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal. The application for judicial review was brought pursuant to s 476A of the Migration Act 1958 (Cth). The subject of that review was the Tribunal’s decision to affirm a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, under s 501CA(4) of the Act, to refuse to revoke the cancellation of the appellant’s visa.

2. The draft notice of appeal accompanying the application contained two grounds. The first ground was that the notice of cancellation of the appellant’s visa was invalid or that the appellant had not been served with a valid cancellation notice. The issue raised by this ground was whether the invitation in the notice—informing the appellant as to the period in which he had to make representations about the revocation of his visa cancellation (s 501CA(3)(b))—was consonant with reg 2.52 of the Migration Regulations 1994 (Cth). This was not raised as a ground of review in the judicial review proceeding. As a consequence, the appellant required leave to raise this ground in the event that time was extended to allow him to bring an appeal. In submissions filed on 28 April 2021, the Minister advised that he did not oppose the application to extend time or the granting of leave to rely on the proposed first ground of appeal.

3. The appellant’s application was listed to be heard with proceeding NSD 1185 of 2020, EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on 3 May 2021. When both proceedings were called on for hearing on 3 May 2021, the Full Court raised a question touching on the validity of the invitation in the notice of cancellation not covered by the appellant’s proposed first ground of appeal. The question raised by the Full Court concerned the effect of the High Court’s decision in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 338 ALR 351 considered in light of Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196. This question also touched on the validity of the invitation in the notice of cancellation given in EPL20.

4. As none of the parties in the two proceedings before the Full Court had raised this question, and as its resolution could be dispositive of each proceeding, the hearing was adjourned to a date to be advised to enable the parties to consider their positions and to file supplementary submissions addressing that question.

5. Given the Minister’s stated position with respect to the appellant’s application for an extension of time, and on leave being granted to rely on his proposed first ground of appeal, an order was made...