Is notification of a decision a decision?

Federal Court: a previous FCA judgement had held that a notice under s 66 of the Migration Act 1958 of a decision to refuse to grant a visa did not itself constitute a "decision" that enlivened the jurisdiction of the Federal Circuit Court (FCCA). Does the same principle apply to visa cancellation revocation notices issued pursuant to s 501CA(3)?

Summary and discussion

The Department of Immigration cancelled the Applicant's visa under s 501(3A) of the Migration Act 1958 (mandatory character cancellation) and then invited him under s 501CA(3) to make representations about revocation of that cancellation within 28 days.

The Applicant made representations after the 28 days, but the Department advised the Applicant that, by reason of the delay, "the Minister cannot considering revoking the decision to cancel your visa".

The Applicant then applied to the Federal Circuit Court (FCCA) for judicial review. As explained by the Federal Court (FCA):

8   Before the Federal Circuit Court it was common ground that no challenge was made to the actual decision to cancel the visa under s 501(3A); the challenge which was mounted was to the notification of that decision. In essence, the Applicant contended that the “person who purported to give the Notice to the Applicant … did not hold a delegation from the Respondent [Minister] to carry out his duty under the Migration Act 1958 s 501CA(3)”. If successful in that challenge, the Applicant would have – so the argument ran – 28 days from whatever date a new notification was given in which to make representations.

The FCCA dismissed that application and the Applicant eventually filed in the FCA an originating application for relief under s 39B of the Judiciary Act 1903.

In a previous FCA judgement (Chung v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 442), it had been held that a notice under s 66 of the Migration Act 1958 of a decision to refuse to grant a visa did not itself constitute a "decision" that enlivened the jurisdiction of the Federal Circuit Court (FCCA).

The question to the FCA was whether Chung equally applied to a notice issued pursuant to s 501CA(3) or whether such a notice constituted a "decision" that enlivened the jurisdiction of the FCCA.

The FCA answered as follows...

The remainder of this article is only available to Case Law and Platinum subscribers.

Read our Terms & Conditions and upgrade below:

Monthly Subscriptions

Basic
Basic Content
-
-
-
Free
Subscribe
Premium
Basic Content
Premium Content
-
-
$ 29 /month
Subscribe
Case Law
Basic Content
-
Case Law Content
-
$ 49 / month
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 9 / month
$ 69 / month
Subscribe

Annual Subscriptions

Basic
Basic Content
-
-
-
Free
Subscribe
Premium
Basic Content
Premium Content
-
Save $ 49 / year
$ 299 / year
Subscribe
Case Law
Basic Content
-
Case Law Content
Save $ 89 / year
$ 499 / year
Subscribe
Platinum
Basic Content
Premium Content
Case Law Content
Save $ 237 / year
$ 699 / year
Subscribe

 

Where GST applies, the above amounts are inclusive of GST.

Content Types

Basic Content includes basic news, some media articles and selected announcements.

Premium Content includes all our content, except for Case Law Content. In other words, it includes Basic Content, plus all our articles on legislative and policy changes, industry updates and the Migration Legislation Tracker.

Case Law Content includes Basic Content, plus case law summaries, analysis and extract, but does not include Premium Content.

Platinum Content includes Basic Content, plus Premium Content, plus Case Law Content. In other words, it includes ALL our content.

If you already have a Case Law or Platinum subscription, click on 'Login' below.