Federal Circuit and Family Court. Does s 131 of the Migration Act 1958 (Cth) imply an obligation that a revocation decision is to be made within a "reasonable time"? If so, can it be said that "the decision-making scheme of Subdivision F gives rise to a powerful implication that the Minister’s obligation to consider and determine a revocation application under s 131 should be discharged within a time which is capable of effecting a restoration of the cancelled rights in both a legal and practical sense"?
Timeline of events:
- On 8 March 2015, the Applicant first arrived in Australia as the holder of a visitor (Subclass 600) visa, which expired on 8 June 2015.
- On 3 June 2015, the Applicant applied for a protection visa (Class XA, Subclass 866).
- On or around 3 June 2015, a Class WA (Bridging Visa A - BVA) was granted to the Applicant, on the basis of his protection visa application. The BVA allowed the Applicant to remain lawfully in Australia (but not re-enter) while the Department (and potentially the Administrative Appeals Tribunal on review) decided whether to grant the protection visa.
- On 28 March 2018, a delegate of the Minister refused to grant him a protection visa.
- On 11 April 2018, the Applicant applied to the Tribunal for review of the protection visa refusal. The Tribunal had not yet determined that application at the time of the Court's decision.
- On 5 January 2022, the Applicant applied for a Class WB (Bridging Visa B – BVB) in order to travel overseas to see his spouse and child and be allowed to return to Australia.
- On 15 June 2022, a delegate of the Minister granted the Applicant a BVB, which allowed him to remain in, and re-enter until 22 July 2022, Australia, pending the Tribunal review.
- On 16 June 2022, the Applicant departed Australia to visit his wife and child in Dubai.
- On 2 July 2022, the Applicant was notified under s 129 of the Act that a delegate cancelled his BVB under s 128 of the Migration Act 1958 (Cth), while he was overseas, where he remained at the time of the Court's decision (the Cancellation Decision). The delegate provided reasons which purported to describe, pursuant to ss 129(1)(a)-(b) of the Act, “the ground on which [the BVB] was cancelled” and “particulars of that ground and of the information … because of which the ground was considered to exist”.
- On 15 July 2022, the Applicant sought revocation of the Cancellation Decision under s 131(1)(a) of the Act by means of a “response to a notice under section 129 of the cancellation of a visa”, which had not been decided yet (the Revocation Request).
- On 18 July 2022, the Applicant’s solicitor filed two originating applications with the Court, one for the judicial review of the Cancellation Decision (file number MLG1656/2022, which was eventually abandoned), the other for the judicial review of the Revocation Request (file number MLG1657/2022).
The Federal Circuit and Family Court (FCFCA) said as follows:
23. On 15 July 2022, by way of a response to the cancellation notice given under s 129, the applicant’s solicitor wrote to the Department requesting revocation of the Cancellation Decision. The email from the applicant’s solicitor to the Department was headed “FOR THE URGENT ATTENTION OF THE MANAGER – REVOCATION DECISION MUST BE MADE BY CLOSE OF BUSINESS MONDAY 18 JULY 202213”. The solicitor’s email also attached a 15 page submission which was headed with the notation “URGENT – MUST BE DECIDED BY THE CLOSE OF BUSINESS, MONDAY, 18 JULY 202214” and contained approximately 50 pages of supporting evidence.
24. In support of the request for revocation, the solicitor reminded the Department that the applicant’s bridging visa was due to expire on 22 July 2022. As such, it was submitted the applicant had been deprived of his statutory right under section 129(1) of the Act to seek revocation within 28 days of the cancellation decision. Given that the applicant is offshore and is required to re-enter Australia by no later than 22 July 2022, his solicitors contended that the Department had not allowed the applicant to utilise the period specified in reg. 2.46 of the Migration Regulations 1994 (“Regulations”). It was submitted, inter alia, that the applicant had been offered a response opportunity which was not meaningful and that if he did not receive a decision on the revocation request by 18 July 2022 (which would afford the applicant enough time to make return travel arrangements), there would be no utility in the revocation process and the process would be “utterly futile”.
25. The solicitor’s correspondence to the Department indicated that if a revocation decision was not made by close of business on 18 July 2022, urgent instructions would be sought to lodge a mandamus application in the Court to require the Department to do so.
26. On Saturday, 16 July 2022 at 5.49pm the applicant’s solicitor again emailed the Department, on this occasion marking the email for the urgent attention of the Manager of the visa cancellation section. The solicitor’s email attached a copy of the applicant’s UAE visitor visa and stated:
“…As foreshadowed in my submission of 15 July 2022, it [the UAE visa] expires 9 August 2022, after which [the applicant] will have no entitlement to remain in the UAE and will be forced to consider returning to his place of claimed persecution and home country, Sri Lanka.”15
27 On Monday 18 July 2022 at 12.51pm the applicant’s solicitor received a response from an officer of the Department which stated, relevantly:
“I acknowledge the receipt of your emails in relation to the revocation request and the request for urgent consideration. I confirm that your request has been escalated to a manager for consideration. Please note that I am unable to provide a timeframe of when a decision will be made.”
38. [The applicant's counsel] also pressed for production of the documents relied upon by the delegate to make the Cancellation Decision, submitting that was necessary and appropriate in relation to both applications. He submitted it was clear on the face of the Decision Record that information was available to the Department which led to the delegate’s conclusion that the applicant had another identity which he had used to apply for a US passport and argued that it was necessary as a matter of fairness for that information to be made available to the applicant. However, the material upon which the delegate reached that conclusion was not known to the applicant, had not been disclosed to him and the applicant had instructed his solicitors that there can be no basis for such a conclusion having been reached. [The applicant's counsel] contended that the Department’s documents would disclose whether there was any proper probative basis for the reason given for cancellation and would reveal the detail of matters to which the applicant should have a fair opportunity to respond.
45. In the amended application, the applicant sought an order that:
“A writ of mandamus be directed to the Minister, requiring a decision in respect of the revocation request made Friday 15 July 2022 in respect of the Minister’s decision of 2 July 2022 to cancel his bridging B visa to be made by noon 21 July 2022.”
46. The single ground advanced in support of the amended application was stated as follows:
Having cancelled the Applicant’s bridging B visa under s 128 of the Migration Act 1958 (Cth) the Minister has an implied statutory obligation to decide the revocation request prior to the expiry of that visa
Particulars
Section 129 requires the Minister to give the former holder of the visa a notice, inter alia, inviting the former holder to show, within a specified time, being a prescribed time, that the ground does not exist, or there is a reason why the visa should not have been cancelled, and stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, cancellation might be revoked.
The Minister cancelled the Applicant’s visa on 2 July 2022 knowing his visa expired on 22 July 2022, ie 20 days later.
Having elected to use the s 128 power, and understanding there is a choice of cancellation powers under s 118 and that those powers do not limit or affect each other, the Minister has an implied obligation to decide the revocation request prior to the expiry of the Applicant’s visa.
The prescribed time set out in sub-reg 2.46 of the Migration Regulations 1994 (Cth) is 28 days in circumstances where the visa holder is offshore when given notice of the cancellation.
Should the Minister decide the revocation after the visa expiry, the revocation process is futile and contrary to the intentions of the drafters of s 129.
53 It is appropriate at this point to refer to the statutory context within which the application seeking mandamus is to be considered and determined.
54 It is convenient to start with a reference to the provisions of s 116(1)(d), for that was the ground relied upon by the delegate to cancel the applicant’s bridging visa. Section 116(1)(c) provides as follows:
Subject to subsections (2) and (3) [neither of which are relevant to this matter] the Minister may cancel a visa if he or she is satisfied that:
if its holder has not entered Australia or has so entered but has not been immigration cleared - it would be liable to be cancelled under Subdivision C (incorrect information given by holder) if its holder had so entered and been immigration cleared.
55 Pursuant to s 117 a visa held by a non-citizen may be cancelled under s 116(1) in various circumstances, including before the non-citizen enters Australia, when the non-citizen is in immigration clearance, when the non-citizen leaves Australia or while the non-citizen is in the immigration zone.
56 Under Subdivision E (ss118A – 127) the Minister may cancel a visa under s 116, whether its holder is in or outside Australia, after notifying the holder that there appear to be grounds for cancelling it. Under the Subdivision E process, if the Minister is considering cancelling a visa, the Minister must first give particulars of the grounds and of the information on which grounds appear to exist and then invite the holder to show within a specified time that those grounds do not exist or that there is some other reason why the visa should not be cancelled.
57 In respect of non-citizens who are outside Australia, a different alternative cancellation process is available to the Minister under Subdivision F (ss127A-133). Relevantly, section 128 provides as follows:
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
58 Under the Subdivision F process the Minister is not required to give any notice to the visa holder prior to cancelling the visa. However, under s 128(a)(ii) the Minister must be satisfied that it is appropriate to cancel in this fashion, which requires the delegate to engage with the fact that there is an alternative means by which the visa could have been cancelled (i.e. on notice)19.
59 If the Minister cancels a visa under s 128 (as is the case here), s 129 of the Act applies, which provides:
(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non-disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked
(2) The notice is to be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.
60 Section 128 is only enlivened when the non-citizen is outside Australia. The immediate cancellation of a visa by the Minister without notice pursuant to s 128 has immediate consequences for the former visa holder.
61 Section 82 sets out numerous circumstances when visas cease to be in effect. Relevantly, s 82(5) states that:
A visa to travel to and enter Australia (whether also a visa to remain in Australia) during a particular period or until a particular date ceases to be in effect at the end of that period or on that date unless the holder of the visa:
(a) has entered Australia in that period or on or before that date; and
(b) is in Australia at the end of that period or on that date.
62 Moreover, s 79 provides that if the holder of a visa leaves Australia the holder may only re-enter Australia under that visa if the visa is permission for the re-entry and the visa is in effect on re-entry.
63 Furthermore, section 80(2) makes clear that a visa to enter Australia within a period is not permission to so enter outside that period.
64 Suffice to say, it was common ground that the Bridging B visa which had been granted to the applicant on 15 June 2022 only entitled him to re-enter Australia until 22 July 2022. Upon cancellation by the Minister on 2 July 2022 the visa immediately ceased to be in effect and the applicant could not use the visa to travel to and re-enter Australia before 22 July 2022 or at all, unless the cancellation was revoked.
65 Where the holder of a cancelled visa responds to the invitation in the s 129 notice and requests revocation of the cancellation decision, s 131 is then engaged.
66 Section 131(1) relevantly provides:
(1)….after considering any response to a notice under section 129 of the cancellation of a Visa, the Minister:
(a) if not satisfied that there was a ground for the cancellation; or
(b) if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
67 Section 131 is silent as to when the Minister is required to make a decision in relation to a former visa holder’s request for revocation. The question to be determined in this proceeding is whether on a proper construction of s 131 the Court should imply a requirement that the Minister make a decision within a reasonable time and, if so, whether that requires a decision to be made before the notional expiry of the applicant’s cancelled visa.
68 Section 132 of the Act is not presently relevant as the Minister has not made a decision as to whether or not to revoke a cancellation. However, if and when such a decision is made, the Minister must notify the non-citizen in a prescribed manner.
69 Section 133 is relevant as it provides what the Minister says is a “complete answer” to the applicant’s claim for relief. Section 133 states:
(1) If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.
(2) Subject to subsection (1), if the cancellation of a visa is revoked, the Minister may vary the time the visa is to be in effect for any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.
86 Counsel for the Minister submitted that the application was without merit because s 133(2) provided a “complete answer” to the applicant’s complaint and the task of statutory construction.
87 It was submitted on behalf of the Minister that s 133(2), within the statutory scheme of Subdivision F, points against there being a duty on the Minister to make a decision within the timeframe of the cancelled visa. It was submitted that section 133(2) of the Act permits the there is no statutory obligation for the revocation decision to be made before the expiry date of the cancelled visa because if t he r evoca ion was ef fe cted a fte r th t d te s 133(2) g ve the M inist er powe r to ext end t h etim e of the vi sa or vary it i n ot her ways .
Some of the questions to the FCFCA were as follows:
Question 1: Did s 129(1)(b) of the Migration Act 1958 (Cth) require sufficient information as is necessary for the applicant to provide a meaningful response?
Question 2: Should the Court "necessarily imply into s 131 an obligation that the revocation decision is to be made within a “reasonable time”"?
Question 3: If the answer to Question 2 is 'yes', is the decision-making framework established by the Act an important contextual consideration?
Question 4: "Invariably, the power under s 128 will be exercised, as here, where a non-citizen leaves Australia on the very visa which the Minister cancels without notice and with immediate effect". Did it necessarily follow that the visa on which the applicant travelled to Dubai and the terms of that visa (including its expiry date) were "relevant matters to consider in the context of the decision-making framework of [Subdivision F of Division 3 of Part 2 of the Act]"?
Question 5: Can it be said that "there is no statutory obligation for the revocation decision to be made before the expiry date of the cancelled visa because if the revocation was effected after that date s 133(2) gave the Minister power to extend the time of the visa or vary it in other ways"?
Question 6: If the answers to Questions 2 and 3 are 'yes', should the Court consider the particular circumstances of this case in the context of the decision-making framework?
Question 7: If the answer to Question 6 is 'yes', is the fact that the 28 days prescribed by s 129(3) for the making of a revocation request was not in any practical sense available to the applicant as a consequence of the Minister's decision to cancel a visa which was to expire 20 days after the cancellation relevant to the question of whether it was reasonable for the decision to be made after 3pm on 21 July 2022?
Question 8: If the answer to Question 6 is 'yes', is the fact that "certain information relevant to the ground of cancellation was not produced to the applicant before he made his revocation request on 15 July 2022 and was only produced after the Court Order on 19 July 2022" relevant to the question of whether it was reasonable for the decision to be made after 3pm on 21 July 2022?
Question 9: Can it be said that "the decision-making scheme of Subdivision F gives rise to a powerful implication that the Minister’s obligation to consider and determine a revocation application under s 131 should be discharged within a time which is capable of effecting a restoration of the cancelled rights in both a legal and practical sense"?
Question 10: Was it open to the Court to infer that the Minister would not, unless ordered by the Court to do so, make a decision on whether to revoke the cancellation before 22 July 2022, in circumstances where the Minister never informed the court that such a decision was imminent, rather opposing the grant of mandamus compelling the Minister to make that decision by then?
The FCFCA answered those questions as follows: