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

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

The appeal succeeded because the invitation wrongly stated, in effect, that the appellant's representations had to be received by the Minister within the 28-day period. Under Stewart, representations under reg 2.52(2)(b) are made when dispatched, not when received. The invitation therefore did not invite representations within the period ascertained in accordance with the regulations as required by s 501CA(3)(b), and the Tribunal's decision affirming the refusal to revoke the cancellation could not stand.

Jurisdiction
Australia
Judgment Date
27 September 2021
Procedural Posture
Appeal From a Decision of a Single Judge of the Federal Court of Australia Dismissing an Application for Judicial Review of a Decision of the Administrative Appeals Tribunal / Full Court Appeal
Outcome
Appeal allowed; Tribunal decision quashed, with the coming into effect of the quashing order delayed pending any special leave process or High Court appeal.
Legal Topics
['cancellation of Visa on Character Grounds' 'refusal to Revoke Visa Cancellation Under S 501 Ca(4) of the Migration Act 1958 (cth)' 'validity of Invitation to Make Representations Under S 501 Ca(3)(b)' 'time for Making Representations Under Reg 2.52(2)(b) of the Migration Regulations 1994 (cth)' 'meaning of Made and Received Representations' 'immigration Detention and Criminal Detention' 'service of Documents']
['migration' 'administrative Law' 'judicial Review'] ['cancellation of Visa on Character Grounds' 'refusal to Revoke Visa Cancellation Under S 501 Ca(4) of the Migration Act 1958 (cth)' 'validity of Invitation to Make Representations Under S 501 Ca(3)(b)' 'time for Making Representations Under Reg 2.52(2)(b) of the Migration Regulations 1994 (cth)' 'meaning of Made and Received Representations' 'immigration Detention and Criminal Detention' 'service of Documents']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal From a Decision of a Single Judge of the Federal Court of Australia Dismissing an Application for Judicial Review of a Decision of the Administrative Appeals Tribunal / Full Court Appeal

Legal Issues

  1. 1 ['Whether the words "given the notice" in reg 2.52(2)(b) meant something different from being taken to have received the document under reg 2.55(7)(a).' 'Whether the notice of cancellation was invalid because it instructed the appellant to make representations within 28 days after he was taken to have received the notice.' 'Whether reg 2.55 or reg 5.02 applied to the notice of cancellation on the basis that the appellant was allegedly in immigration detention when the notice was given.' 'Whether the invitation was invalid because it stated that representations received outside the 28-day period could not be considered, contrary to Stewart and EFX17.' 'Whether the appellant had made representations within the 28-day period by leaving forms with prison officers for collection by his girlfriend.']

Ratio Decidendi

The appeal succeeded because the invitation wrongly stated, in effect, that the appellant's representations had to be received by the Minister within the 28-day period. Under Stewart, representations under reg 2.52(2)(b) are made when dispatched, not when received. The invitation therefore did not invite representations within the period ascertained in accordance with the regulations as required by s 501CA(3)(b), and the Tribunal's decision affirming the refusal to revoke the cancellation could not stand.

Court Disposition

Appeal allowed; Tribunal decision quashed, with the coming into effect of the quashing order delayed pending any special leave process or High Court appeal.

Orders

  • ['The appeal be allowed.' 'Order 1 made in NSD 628 of 2020 on 15 September 2020 be set aside.' "The second respondent's decision dated 29 April 2020 be quashed." 'The coming into effect of Order 3 be delayed until the expiry of the period within which to seek special leave to appeal to the High Court of Australia...