Federal Court (Full Court). Does the deeming effect under r 2.55(7)(a) apply to r 2.52(2)(b)? Does the mere fact that a State prison can be a place of immigration detention mean that a person held there is "in immigration detention"? Can it be said that "the act of “an unidentified person” giving him the notice of cancellation cannot amount to “service” within the meaning of" r 5.02?
The Full Court of the Federal Court (FCAFC) said as follows about a notice of visa cancellation, following mandatory cancellation under s 501(3A) of the Migration Act 1958 (Cth):
9. The notice of cancellation included a Revocation Request Form and a Personal Circumstances Form. The appellant’s evidence is that he received the notice of cancellation on 18 November 2018. The appellant says that he completed, signed, and dated the Revocation Request Form, and that he partly completed and signed the Personal Circumstances Form. However, most of the Personal Circumstances Form was left blank by him to be completed by his girlfriend, his mother, or his aunt. He says that, by 20 November 2018 (within two days of his receipt of the notice of cancellation), he left the Revocation Request Form and the partly completed Personal Circumstances Form with prison officers to be collected by his girlfriend and to be forwarded, presumably by her, to the Department. The appellant says that he placed the documents on a tray through a little window, near his cell, where forms were collected. The appellant’s understanding is that, at some stage—he does not say when—his mother and aunt completed the documents and sent them to the Department.
57. ... Those in whom the appellant entrusted the forms to be fully completed, and then dispatched, did not do so timeously.
Some of the questions to the FCAFC were as follows:
Question 1: Reg 2.52(2)(b) of the Migration Regulations 1994 (Cth) provided that representations seeking revocation under s 501CA(4) of the Migration Act 1958 (Cth) of mandatory visa cancellations must be made "within 28 days after the person is given the notice" (italics added). In contrast, r 2.55(7)(a) provided as follows: "If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document [at a certain point in time]" (italics added). Can it be said that the deeming effect under s r 2.55(7)(a) does not apply to r 2.52(2)(b)?
Question 2: Can it be said that the mere fact that a State prison can be a place of immigration detention does not mean that a person held in a State prison is "in immigration detention"?
Question 3: If the Minister is required to serve a notice of cancellation in accordance with r 5.02 and fails to comply with this provision, is service nevertheless valid if the person actually received the notice?
Question 4: Can it be said that "the act of “an unidentified person” giving him the notice of cancellation cannot amount to “service” within the meaning of" r 5.02?
Question 5: By partially completing and signing the Revocation Request Form, did the applicant make representations about revocation of the cancellation decision within the time prescribed by r 2.52(2)(b)?
The FCAFC answered those questions as follows:
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