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...