Lewis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 205

Lewis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 205

The first and second notifications contained language materially identical to that held invalid in Sillars, because they stated in effect that representations had to be received within the 28-day period, whereas reg 2.52(2)(b) required representations to be made, meaning dispatched, within that period. The invitations therefore failed to comply with s 501CA(3)(b), no valid invitation had been issued, and the Tribunal's decision affirming the Minister's non-revocation decision should be set aside.

Jurisdiction
Australia
Judgment Date
10 March 2022
Procedural Posture
Application Under S 476 a of the Migration Act 1958 (cth) for Judicial Review of a Decision of the Administrative Appeals Tribunal / Judgment on Application for Judicial Review
Outcome
Application succeeded; the decision of the Administrative Appeals Tribunal was set aside and the first respondent was ordered to pay the applicant's costs.
Legal Topics
['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4)' 'invitation to Make Representations' 'time for Making Representations' 'jurisdictional Error']
['migration Law' 'administrative Law' 'judicial Review'] ['mandatory Visa Cancellation' 'revocation Under S 501 Ca(4)' 'invitation to Make Representations' 'time for Making Representations' 'jurisdictional Error']

Case Brief

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Procedural Posture

Application Under S 476 a of the Migration Act 1958 (cth) for Judicial Review of a Decision of the Administrative Appeals Tribunal / Judgment on Application for Judicial Review

Legal Issues

  1. 1 ["Whether the Minister's invitations to make representations complied with s 501CA(3)(b) by inviting representations within the period and in the manner ascertained in accordance with the regulations." 'Whether representations made within 28 days of the second notification but not the first enlivened the revocation power under s 501CA(4).' 'Whether the Tribunal erred in concluding that the revocation power had not been enlivened because representations were not made within 28 days of the first notification.']

Ratio Decidendi

The first and second notifications contained language materially identical to that held invalid in Sillars, because they stated in effect that representations had to be received within the 28-day period, whereas reg 2.52(2)(b) required representations to be made, meaning dispatched, within that period. The invitations therefore failed to comply with s 501CA(3)(b), no valid invitation had been issued, and the Tribunal's decision affirming the Minister's non-revocation decision should be set aside.

Court Disposition

Application succeeded; the decision of the Administrative Appeals Tribunal was set aside and the first respondent was ordered to pay the applicant's costs.

Orders

  • ['The decision of the second respondent be set aside.' "The first respondent pay the applicant's costs." 'The parties provide to the Court within 14 days any further proposed agreed form of order, failing agreement respective draft forms of order.']