EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

Federal Court of Australia

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 Review of: Application for judicial review of the Administrative Appeals Tribunal decision delivered on 23 October 2021 by Senior Member Linda Kirk

File number: NSD 1185 of 2020

Judgment of: YATES, GRIFFITHS and MOSHINSKY JJ

Date of judgment: 27 September 2021

Catchwords: MIGRATION – judicial review of decision of Administrative Appeals Tribunal holding that it did not have jurisdiction to review decision not to revoke visa cancellation decision under s 501CA(4) of Migration Act 1993 (Cth) – where representations were not "received" by Minister within 28 days under r 2.55 of Migration Regulations 1994 (Cth) – where Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 held "made representations" means "dispatched" – whether Stewart "plainly wrong" – consideration of "plainly wrong" where issue concerns matter of statutory construction by recent Full Court – Stewart not plainly wrong – where notification letter incorrectly stated representations must be "received" within 28 days – where letter analogous to Stewart – where Minister for Immigration and Border Protection v EFX17 [2021] HCA 9; 388 ALR 351 held notification letter must crystallise time period for making representations expressly or by reference to correct objective facts – notification letter did not meet requirements of s 501CA(3) – jurisdictional error by Tribunal – held: Tribunal's decision quashed CONSTITUTIONAL LAW – s 116 of the Constitution –whether Part 9.2 of the Act invalid for prohibiting free exercise of religion – consideration of purpose of Part 9.2 – held: no invalidity CONSTITUTIONAL LAW – whether applicant not an "alien" and therefore not subject to operation of Act – applicant's experience or perceptions of alienage irrelevant CONSTITUIONAL LAW – whether s 501CA of the Act infringes alleged implied Constitutional right to natural justice – natural justice arises from statutory implication or common law – argument patently weak – unnecessary to decide given success on non-Constitutional point MIGRATION – whether failure to establish evidence of service of enclosures to notification letter in breach of s 501CA(3)(a) of the Act – statutory requirement only to provide "particulars" of relevant information – claim rejected