Gibson v Minister for Home Affairs [2020] HCATrans 46 (26 March 2020)

Last Updated: 31 March 2020

[2020] HCATrans 046

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M111 of 2019

B e t w e e n -

MICHAEL DONALD GIBSON

Plaintiff

and

MINISTER FOR HOME AFFAIRS

Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 26 MARCH 2020, AT 10.15 AM

Copyright in the High Court of Australia
MR A. ALEKSOV: May it please the Court, I appear for the plaintiff. (instructed by Lawson Bayly)

MR A.F. SOLOMON‑BRIDGE: If it please, your Honour, I appear for the defendant. (instructed by Sparke Helmore)

HIS HONOUR: Thank you both very much. I understand we also have the solicitors by audio link to two further locations, although not by video link.

Before we commence, could I just say that I am very grateful to both of the counsel and the solicitors for working with the extraordinary IT staff of this Court to implement this electronic hearing, which I am told is now capable of accommodating of up to 10 remote locations. It is my hope that this hearing will prove to be a successful model for the next electronic hearing which will be a hearing of the Full Court scheduled in April. The Court is a vital public service and your assistance and co‑operation is essential to keeping this service available, particularly in cases of pressing importance.

Mr Aleksov, I have received your outline of written submissions. Before you commence, can I just understand what you mean by paragraph 1.

MR ALEKSOV: Yes, your Honour. There was a proposed attempt to amend the application for a constitutional writ to rely on an argument based on a case called EFX17.

HIS HONOUR: Yes.

MR ALEKSOV: I think EFX17 is up for special leave in this Court at the moment. I am not sure whether or not your Honour received that amendment, but we ‑ ‑ ‑

HIS HONOUR: I have read all the papers. What I did not quite understand “arose because” the amendment raises a number of different issues. Is what you are saying in paragraph 1 that you are not relying upon any of those new issues raised by the amendment?

MR ALEKSOV: Yes, that is so, your Honour.

HIS HONOUR: I see. Yes, all right.

MR ALEKSOV: Thank you. The only argument that we wish to press in this Court is as set out in the initial application for a constitutional writ based on the points of construction of section 501CA of the Migration Act and regulation 2.52 of the Migration Regulations.

HIS HONOUR: Yes.

MR ALEKSOV: If your Honour pleases then, the plaintiff needs enlargements of time under the Rules and under the Migration Act and our submission is he should have those enlargements. Your Honour will have two affidavits from my instructing solicitor, Mr Bayly, dated 17 September 2019 and 11 December 2019.

HIS HONOUR: Yes, I have read those and I will take those as read.

MR ALEKSOV: Thank you, your Honour. The explanation - although the delay is fairly lengthy, we submit that it is satisfactorily explained in whole. From the very beginning the plaintiff took – as self‑represented – pursued the present construction argument in the AAT saying that he had indeed made representation seeking revocation of the cancellation of his visa in a manner that the Minister could respond to. The AAT found that that was wrong and that it lacked jurisdiction.

He then pursued the same points in the Federal Court. Part way through the pre‑trial procedures the applicant managed to retain lawyers and those lawyers pursued the case on his behalf until a factual item came to be known following a question from her Honour Justice Mortimer who was hearing the case in the Federal Court. The parties explored that factual question and it turned out that the procedure contemplated in the Federal Court for a collateral review of the question could not be reviewed. The plaintiff then discontinued the proceedings in the Federal Court and commenced the proceedings in this Court.

The Minister correctly points out there have been a few months’ delay between the discontinuance of the Federal Court proceeding and the commencement of this proceeding, which is explained in the second affidavit of Mr Bayly that it would have been the point of counsel availability.

HIS HONOUR: It is counsel availability and issues of costs.

MR ALEKSOV: Yes, that is right, your Honour. Unless your Honour has any questions about the matters going to the explanation for the delay, I would move to the merits of the argument.

HIS HONOUR: Yes.

MR ALEKSOV: The plaintiff’s argument is that the combined effect of section 501CA(3)(b) and (4)(a) of the Migration Act, together with regulation 2.52(2), creates a situation where even if a person does not comply with the time limit specified in the regulations, a consequence of that non‑compliance is not that the Minister lacked jurisdiction.....to consider a request for revocation of a visa cancellation and then to.....that earlier cancellation.

Now, our argument is largely set out in writing, your Honour, and we start from – the principle that we would rely on, your Honour, is set out in Project Blue Sky, which I am confident your Honour will be very familiar with, where the consequences of non‑compliance with the provision are itself a matter of statutory construction and we pointed to significant features of the Migration Act which we say support the conclusion that we urge.

HIS HONOUR: As I understand your submission about 501CA(4), there are broadly two steps. The first step is to consider whether or not there is a duty on the Minister to consider revocation of the original decision once representations have been made by an applicant, and the second step is if there is such a duty to consider that must be exercised by the Minister, whether that duty continues to subsist or whether a precondition of that duty is satisfaction of the criteria in (4)(a), namely that the representations are “in accordance with the invitation”.

MR ALEKSOV: Within the period and in accordance with, yes, because (3)(b) and (4)(a) have to be read together.

HIS HONOUR: Yes. Who would make the assessment of whether the representations are in accordance with the invitation?

MR ALEKSOV: In the first instance, obviously the administrative decision‑maker looking at the matter would need to form an opinion about it, but it appears to be a jurisdictional fact over which a court would have final say.

HIS HONOUR: So you accept that (4)(a) is a jurisdictional fact, but you say it is not a jurisdictional precondition?

MR ALEKSOV: I beg your pardon, your Honour. What I mean to say is that it is for the court to assess whether or not representations have been made in accordance with the invitation as a final basis. Our point is that even if that had not been made in accordance with the invitation insofar as time is concerned, that does not deprive the Minister of the power to revoke as set out in the chapeau to 501CA(4).

HIS HONOUR: Is it common ground that 501CA(4) confers a power upon the Minister to revoke, rather than a duty upon the Minister to revoke?

MR ALEKSOV: Of course, your Honour. We would – our submission is yes..... We would submit, though, that the power to revoke does come with a jurisdiction to consider a revocation request where one is made.

HIS HONOUR: Even if ‑ ‑ ‑

MR ALEKSOV: .....

HIS HONOUR: Yes, all right.

MR ALEKSOV: Thank you, your Honour. The textual indications, we submit, start from 501CA itself and there is a measure of flexibility in those, as your Honour knows.....provisions that precede the enactment of section 501CA. They are section 501D and section 501C(10). We have referred to those in our written submissions, your Honour. The two other provisions, 501D and 501C(10) – were enacted in 1998 and 501CA was enacted in 2014. Parliament had before it a verbal formula which achieved the mandatory outcome, and I use that word “mandatory” in a conclusory sense – had before it that verbal formula and chose to adopt different verbal formulae in section 501CA.

In our respectful submission, that is highly significant in a statute which has many other situations where time is made absolute and mandatory and even minor extensions are not possible, including with jurisdiction..... Your Honour will know that starting from visa application time windows through to application for review to a tribunal having to be within a certain timeframe. In our respectful submission that is a very strong textual and contextual indication that the consequences of non‑compliance with subsection (4)(a) is not that the Minister loses the ‑ ‑ ‑

HIS HONOUR: I can see the argument you make about the regulations in 501C(10). What is the point you make about 501B?

MR ALEKSOV: Section 501D.

HIS HONOUR: Section 501D. Which part of 501D?

MR ALEKSOV: The text that comes after the two subparagraphs and it is the second‑last line in the version that I am looking at which says:

must not be considered by the Minister unless the information –

et cetera.

HIS HONOUR: Yes.

MR ALEKSOV: Now, that verbal formula, your Honour, was in the Act since 1998, prior to the enactment of 501CA, and both verbal formulae that I have taken your Honour to were chosen not to be used in the present context.

HIS HONOUR: So what precisely then is the effect, even if one reads (4)(a) as using a verbally contrasting formula of that subsection?

MR ALEKSOV: Yes. There are two principal effects. The first concerns removal. If I could ask your Honour to turn up section 198 – I will just have to do it myself, your Honour.

HIS HONOUR: Yes.

MR ALEKSOV: It is 198(2B)(c) where a removal – the obligation to remove as soon as is reasonably practicable in respect of a person – whose case is being considered under these provisions. If they have not made representations in accordance with the invitation and the period for making representations has ended – see (i), then the duty to remove is engaged. So that is a clear statutory function of – or consequence of non‑compliance with the time limits. The other impact of specifying a time limit and other procedural requirements for the manner in which representations are made ‑ ‑ ‑

HIS HONOUR: Well, 198(2B)(c) cuts both ways in a sense because 198(1), as you will be well aware, imposes the overall obligation to remove as soon as reasonably practicable in light of all of the later subsections.

MR ALEKSOV: I am sorry, that is not quite so. Section 198(1) is only where the person has asked the Minister to do so.

HIS HONOUR: I see. Is there not an overall obligation to – well, 198(2B) imposes the same obligation to remove as soon as reasonably practicable once the circumstances in (c) are satisfied.

MR ALEKSOV: Yes, and one of the large issues that arises on our construction is well, what work does the time limit under the regulations do. Our first and most important answer is it engages the duty of the officer to remove. So if a person is late in providing their representations they, regrettably for them, are subject to the duty to remove, which.....have all manner of consequences but also it completely obliterates what we see to be the defendant’s most significant argument, being one of context about it is unlikely that Parliament would have let people be able to continue making revocation representations after the time has expired because they may have to be removed. The short answer is that has to happen anyway.

So a person has the potential to make a revocation request after they have had their visa cancelled and the time has expired. But it may be that for that person that request for them, regrettably, will have to be dealt with offshore if the duty to remove is performed quickly.

HIS HONOUR: So, effectively, there is no time limit then, on your submission, to an ability to make representations about revocation?

MR ALEKSOV: In practical terms yes, I have to accept that. Of course the delay in making revocation representations may be itself the decisive factor. If 10 years had gone past that might be reason enough for the Minister to decide not to revoke and in practical terms, your Honour, after the 28 days had passed, or seven days as the case may be, the person can expect to be removed from Australia forthwith.

It is not, in our respectful submission, that unrealistic to the outcome that we urge to be accepted because the processes involved in aspects of the premise of these provisions, being convictions much of the time, take longer than 28 days and it is often enough the case that a person who is convicted of an offence that leads to a mandatory failure of the character test subsequently has that conviction overturned on an appeal. In our respectful submission it would be unlikely that Parliament would have wished to deprive the Minister of the power to revoke an earlier cancellation in those circumstances. We have set out other contextual indications to that effect, too.

HIS HONOUR: Do you accept that there is only one bite of the cherry?

MR ALEKSOV: Of course.

HIS HONOUR: Yes. On your submission, although there is only one opportunity to make the representations under 501CA, that opportunity can be exercised at any time, even, I think in your example, up to 10 years later and the Minister will have a duty to consider that representation at any time.

MR ALEKSOV: I have to accept that as a consequence of our argument, yes. In practical terms, your Honour, it is one of those extreme scenarios and if I could take your Honour’s attention to the other end of the extreme scenario. A person who is found to be owed protection by Australia under international instruments who is one day late because someone in the prison did something or could not do something they were supposed to do, that person now has to be removed by dint of 198 and 197C. The attention to the extremes cuts both ways, in our respectful submission.

HIS HONOUR: Extreme examples are not always helpful in construction in any event.

MR ALEKSOV: I accept that, your Honour. Our point here is to say whilst it might seem, on one view, odd that a consequence of our argument is that submissions made long after the fact of cancellation would also need to be considered, so too would submissions made – or representations made one day out of time with an excellent explanation.

HIS HONOUR: If submissions were made one day out of time with an excellent explanation and perhaps a powerful reason such as quashing of a conviction or something like that, do you say that the Minister would not have power to revoke the original decision?

MR ALEKSOV: On our construction ‑ ‑ ‑

HIS HONOUR: Sorry, to refuse to revoke the original decision.

MR ALEKSOV: On our construction the Minister would have the jurisdiction to consider it and power to refuse it which would have the various consequences that has under the Act including an AAT review if the refusal is by a delegate. On the defendant’s construction, the answer would be no, neither. The Minister would not have the ability to consider nor even to refuse. There is no jurisdiction to do anything on the opposing construction.

HIS HONOUR: Yes. So what your submission ultimately comes down to is that there is always a duty to consider and there is a power effectively to waive the requirements, if they can be expressed in that way, of (4)(a).

MR ALEKSOV: In our respectful submission, your Honour, we would not put it as a power to waive. We say it would – if the Minister chooses to make a decision in those circumstances to revoke, then the revocation.....substantive exercise of power which has been made not in compliance with procedural requirements and that revocation decision is nonetheless legally effective in its terms, even though it was made procedurally irregularly. The Minister is not waiving anything. The Minister would have to take account of the procedural irregularity.

HIS HONOUR: What if the Minister were not satisfied that the person had passed the character test or that there was any other reason why the original decision should be revoked?

MR ALEKSOV: The Minister would then refuse to revoke and if the Minister ‑ ‑ ‑

HIS HONOUR: Would the Minister have to refuse to revoke then?

MR ALEKSOV: Yes.

HIS HONOUR: So, in effect, (4)(b) is a precondition but (4)(a) is not?

MR ALEKSOV: Yes, and that is obvious from the context because (4)(b) directs your Honour’s attention back to the matters that led to the initial cancellation of the decision. Insofar as it assists your Honour as well, we accept that the making of representations is also required - unless a person asks for the visa to be revoked it seems that there would be no occasion for the Minister to do anything about it.

HIS HONOUR: Yes.

MR ALEKSOV: That is a contextual observation because it is absurd for the Minister to refuse to revoke something if someone is not asking for it.

HIS HONOUR: Yes.

MR ALEKSOV: The last point I make, your Honour – it is in our outline of oral submissions. I am not sure if your Honour received that document – a three page ‑ ‑ ‑

HIS HONOUR: Yes, I have that.

MR ALEKSOV: The last point I make, your Honour, is that acceptance of our argument leads to a workable structure of other aspects of regulation 2.52, whereas acceptance of the argument.....leads to a quite extraordinary operation of regulation 2.52. If your Honour looks at those regulations, other requirements that we find with the invitation include that representations must be in writing and in English, but they must include the full name and date of birth of the person and.....other details and other matters. The documents have to be originals or copies certified by people able to do so.

Those, in our respectful submission, your Honour, are extremely difficult things for people to be doing given the context in which these people are likely to find themselves in. It will either be in prison or in immigration detention and they are known to be non‑citizens and many of them will not have English skills. So if we are wrong in our construction, the consequence is that a failure to comply with any one of the matters in regulation 2.52 means that there has not been compliance with – or a representation in accordance with the invitation and the Minister is not able to revoke or do anything.

HIS HONOUR: Yes.

MR ALEKSOV: There is also – I just want to come back to the one point your Honour raised with me about extensive delay potentially – representations being made significantly late. It is not.....in a legal context for an administrative decision‑maker to have power to do something even though a time limit has been significantly passed. One example of that might be thought to be – and the analogy is not perfect, I accept, but the AAT in 84‑day rule cases.

Now, the 84‑day rule is a rule under section 500(6L)(c) of the Act which says unless the AAT makes a decision within 84 days it is taken to affirm the decision under review. If one takes that AAT decision to court and succeeds, then the AAT is reconsidering a matter long after the 84 days have expired, but, nonetheless, is understood to have power to make a substantive decision favourably or unfavourably or otherwise as its powers allow. So it is not so unsatisfactory for our conclusion to lead to the result that the Minister might have to do something long after a time limit has passed.

HIS HONOUR: Yes.

MR ALEKSOV: Unless your Honour had any other questions, those are our submissions.

HIS HONOUR: Just one other point – as I understand it, the other matter in dispute between the parties is if time is extended then you say this matter ought to be referred for hearing by a Full Court and the Minister says the matter ought to be remitted to the Federal Circuit Court.

MR ALEKSOV: Yes.

HIS HONOUR: Why would not the Minister’s course be the more appropriate course in circumstances in which, if it is accepted, as you submit, that there are a number of other cases like this case that have properly progressed through the lower courts and would then be considered by this Court if an application were made for special leave, for this matter to be remitted so that the considerations relating to whether a proper vehicle is presented for this Court. Whether in light of submissions and reasons before the lower courts there are sufficient prospects of success – all of those matters could be properly considered by this Court rather than effectively having this case jump the queue?

MR ALEKSOV: I take your Honour’s point. There are a few things I wish to say in answer to that. I believe it is accepted by our learned friends that this case is a suitable vehicle for resolution of the legal question. Indeed, your Honour, the facts are extremely brief and we would be able to agree a statement of relevant facts within a few days, I imagine. The only question in dispute between the parties is the point of law that I have addressed your Honour on. So in terms of whether this is a suitable vehicle, in our respectful submission, it is an ideal vehicle. The Court would never find any better one – could not find a better one for this question.

HIS HONOUR: Well, a much better vehicle might be a case where the arguments have been carefully developed and refined, particularly in light of reasons of lower courts. What we are seeing here – and I say this without any criticism of you or those instructing you, but new arguments being developed, not pressed, put on the backburner – that is what will often happen as cases progress through a process of hearing.

MR ALEKSOV: I accept what your Honour says about that. The new arguments developed and then not pressed concerned essentially factual points – which, if they remained alive I could not ask this Court to hold on to the matter. But those points have fallen away. Our only point to this Court and to the Circuit Court will be the legal point I have addressed your Honour on.

HIS HONOUR: So when you say they are not pressed, they are effectively abandoned for all purposes, not just not pressed in this Court?

MR ALEKSOV: That is absolutely right, your Honour, and the reason for that is ‑ ‑ ‑

HIS HONOUR: Just so I understand then, that means you do not seek to rely upon your amended application. It is just your original application that you rely upon.

MR ALEKSOV: Yes, sorry, your Honour. I should have made that much clearer. The reason for that is an affidavit that was sworn by my learned friend’s instructor which made it clear that.....assumptions were wrong. In terms of the assistance this Court would gain from judgments below, I have to accept that submissions in two courts and judgments of two courts before it gets to this Court would always be a matter of large assistance for this Court. However, the point is a fairly short one – the point of construction is relatively discrete. In my respectful – I will be led in any High Court case. I imagine so would my learned friend. It is perhaps - the degree of assistance that this Court would get from lower court judgments is perhaps not as high as it might be in a denser or more complicated case.

The other point I would say, your Honour, is at the moment and as I understand, my client remains in immigration detention and events have
overtaken us. Now, the prospects of having this case heard and determined in the courts below and by the time it reaches this Court would surely mean significant time passes. This case is suitable enough, in my submission, for this Court to consider. The point is a large one and it is likely to affect many people and your Honour should take notice of present circumstances and deal with the matter as efficiently as the judicial system could. But those are our best points to avoid remitter.

HIS HONOUR: Yes, thank you very much, Mr Aleksov.

MR ALEKSOV: If the Court pleases.

HIS HONOUR: Yes, Mr Solomon‑Bridge.

MR SOLOMON‑BRIDGE: Thank you, your Honour. Perhaps I will address you first on the extension of time matters, then on the hypothesis that the extension is granted I will address you briefly on the remittal question and then I will turn to substantive merits. Because of the abandonment of the amended application, I do not think I need to rely upon the affidavit of Mr Adam Cunynghame made 19 March 2020. I do rely upon the affidavit of Inshani Ward made 17 October 2019.

HIS HONOUR: Yes, I will take that as read.

MR SOLOMON‑BRIDGE: Thank you, your Honour. The extension of time is opposed. I do not say the substantive application is unarguable but I do say that in light of the length of the delay and the explanation for it the substantive application has insufficient merits such as to make it necessary in the interests of justice to extend time under 486A of the Act. My learned friend is quite right insofar as he seeks to measure delay from 11 June 2019. That is when the plaintiff knew, or reasonably knew, that his proceedings before the Federal Court were incompetent.

HIS HONOUR: Strictly, it would be several weeks after 11 June, would it not?

MR SOLOMON‑BRIDGE: I was about to say if we allow in his favour 35 days, which is the time within which to issue in this Court, we are still looking at approximately two months’ delay, that is to say 11 June plus 35 days still leaves two months thereafter approximately in which the plaintiff delayed filing. It is not the lengthiest delay this Court has entertained, but nor is it de minimus.

The explanation for that period of delay – the competing commitments of my learned friend’s instructor and counsel and one, at a professional level, has some sympathy for that, but ultimately I say that is not what is known as an adequate explanation and, although an adequate explanation for that delay is not a precondition for the extension, it is certainly something that should go in the mix, as it were, and particularly in combination with the ‑ ‑ ‑

HIS HONOUR: The adequacy then folds into the merits, does it not?

MR SOLOMON‑BRIDGE: Yes, I agree with your Honour. That is all I wish to say about the extension, that is to say that effectively because of that inadequately explained delay in that later period the matter does not have the sufficient merits to justify the extension. Assuming that the extension is given, I say that the matter should go to the Circuit Court and I embrace some of the propositions you put to my learned friend, your Honour, a moment ago.

I would add to those observations – those exchanges, I should say – that for reasons I will come to the matter is not sufficiently meritorious to trouble a Full Court and the assertion that the resolution of this question of law will affect many cases should be treated with some caution. Certainly, to my knowledge, there are only a handful of cases in the Federal Court and the Circuit Court which concern late lodgement of these revocation requests. None of them has raised this point but I am aware of only perhaps two or three, all of which are unreported, which have dealt with applicants or plaintiffs who have missed the deadline.

One can infer from that how many people might be affected by the question of law and also I would note that the plaintiff seeks to extinguish in some respects 501CA from other provisions in the Act, including the ones that Mr Aleksov took your Honour to earlier in the hearing. So, again, in that respect it could not be said to be a question of law which would have, on the plaintiff’s case, implications beyond that section.

The Court would benefit, in my submission, from lower courts’ consideration of the issues and I also draw your attention, your Honour, to Chief Justice Brennan’s observation which I have set out in the amended response to the effect that the remitter power in section 44 of the Judiciary Act – this is paragraph 6 of the amended response – it is the same paragraph as the original response. Those are.....to the effect that to remit a power is designed to avoid this Court from being burdened by matters which could properly be brought in an Australian trial court.

Insofar as your Honour has been asked to take judicial notice – that is what I apprehended – of the current situation which your Honour commented on at the commencement of this hearing, it cuts both ways, if I might say so. Of course this Court’s business is burdened, particularly its Full Court matters, by COVID-19 in precisely the same ways as the lower courts are and I draw your Honour’s attention to the best information I have from the Federal Circuit Court in terms of its latest practice notes about this are that it will be conducting telephone or video conference matters for migration proceedings, except where personal attendances require – that is a note from 18 March – and this is a matter which could justly be heard and determined by telephone or video conference, one might assume.

HIS HONOUR: Do you say that on the basis that effectively there are no real factual matters in dispute between the parties, given the abandonment of the amended application?

MR SOLOMON‑BRIDGE: Yes, this Court – I cannot say that there would be any factual disputes. Of course, that is a common characteristic of almost all judicial review proceedings. So to that extent it is a proper vehicle for determining the question, but a more nuanced view of what a proper vehicle would be would include the benefit of either a single Justice or Full Court of the Federal Court in their appellate jurisdiction hearing, determining the issues and giving some judgment upon them.

The sifter – if I can put it that way – of special leave is an important one, and applicants generally should not be encouraged, in my respectful submission, to divert from that special leave process without some compelling circumstance and, apart from the fact of the plaintiff’s detention, which regrettably is a common matter pertaining to these migration matters, no particular circumstance has been advanced which would justify its not going through the ordinary special leave process.

HIS HONOUR: Yes.

MR SOLOMON‑BRIDGE: That is all I wish to say about remittal. I should also note the parties agree that the matter can only be remitted if your Honour were to enlarge time, that is to say your Honour could not remit the pending matter without the.....extension application first.

HIS HONOUR: Just finally on the extension application then, do you accept that the only prejudice to the Minister by the grant of an extension in circumstances in which there do not appear to be any factual matters in dispute is the general prejudice that arises by the bringing of any claim outside the time period that is allowed?

MR SOLOMON‑BRIDGE: I could not say there was any particular prejudice to the Minister.

HIS HONOUR: Yes.

MR SOLOMON‑BRIDGE: If I can turn to the merits of the substantive application, I wish to emphasise – perhaps the first matter to emphasise is in the text itself of 501CA. Your Honour will note the immediate text and context of that provision and you will see that it is a power expressed in conditional terms – so in the chapeau to that provision it talks of – or the power is conferred by the use of “the Minister may” and then at the end of that chapeau it provides the conditional conjunction, I suppose, “if”, followed by those two limbs. As your Honour noted in exchanges, it is accepted that the second of those limbs, that is to say whether the Minister is satisfied:

(i) that the person passes the character test . . . ; or

(ii) that there is another reason why the original decision should be revoked –

that is a precondition to the exercise of the power and.....some imperfect compliance with that satisfaction would enliven the power and the context, of course, then indicates that subsection (a) expressed as a discrete limb should really have no lesser compliance which is mandated by it.

HIS HONOUR: Do you accept the submission of the applicant that subsection (4) is a power and not a duty?

MR SOLOMON‑BRIDGE: Can I make this submission, your Honour? The way for Federal Court authority is that the “may” in subsection (4) is a “must” which is to say that if the Minister is satisfied of (a) and (b), the Minister must revoke – it is not in the authorities but, your Honour, the Full Court decision I can refer you to is Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at paragraph 32 and there the Full Court, Justice Collier I believe, sets out the single Justice authorities on that which are to the effect – or the weight of them are to the - that the “may” in subsection (4) means “must”.

That, of course, poses difficulties – I am not saying that binds this Court, of course, but that construction, if accepted, poses difficulties for Mr Aleksov’s argument about how a delay would be taken into account on his construction because it is difficult to see how the structure of that provision would allow for the discretion that he urges upon the Court to be exercised because ‑ ‑ ‑

HIS HONOUR: It is not entirely clear to me what the applicant says is meant by “in accordance with”. I mean, the applicant says that (4)(a) does not give rise to a waiver power which might be one way of saying that it is not a necessary precondition. But it may be that what the applicant’s point is is that “in accordance with” is really to be understood as meaning “in response to” or “consistently with” rather than “in compliance with”.

MR SOLOMON‑BRIDGE: Although the authorities that might bear on that dichotomy are not discussed in the submissions, I accept as a general proposition that “in accordance with” is a phrase that can takes its colour from context and that in some circumstances it may mean “in strict compliance with” and in some other circumstances it may mean, for example, “pursuant to”. I suppose, however the argument is marshalled by the plaintiff, the immediate difficulties are the matters of context because they all point towards or substantially point towards, in my submission, the Minister’s construction.

In particular, your Honour might remember the removal duty – I will not take your Honour back to it, but your Honour made the point that it perhaps cuts both ways in the sense that – which I took to mean in the sense that the power or the duty, I should say, to remove, which is triggered upon the expiry of the 28 days, that might tend to support the Minister’s submissions about the strict compliance with the period.

I should know that this point – or I took the plaintiff to be submitting that in a sense section501CA(4)(a) should be read as not imposing any direct obligations or as creating any direct preconditions because of the practical removal steps which will be taken once the time has expired.

I note that 501CA and the other provision to which I have been making reference were introduced at different times. The first, 501CA, was introduced by Act No 129 of 2014 which was the Migration Amendment (Character and General Visa Cancellation) Act, whereas 198(2B) was introduced by Act No 10 of 2017 being the Migration Amendment (Character Cancellation Consequential Provisions) Act.

The immediate point of relevance there is that at the time of amending the Act to introduce section 501CA there was no practical removal duty for a number of years thereafter and one must infer and assume that the provision had some work to do during that period until 198(2B) was introduced and, of course, that work which it was intended to do subsists now despite the introduction of the new provision about removal.

HIS HONOUR: But if no representations had been made within the time limit, even before 2017, there would have been no obstacle to removing a person, would there?

MR SOLOMON‑BRIDGE: The person – a person would have to detain them if they reasonably suspected them to be unlawful non‑citizens and then that detention would have to be for the ‑ ‑ ‑

HIS HONOUR: But accepting all of that – so that the power of removal would have arisen, in those circumstances the absence of a practical obligation like section 198(2B) would not prevent the unlawful arrival from being removed.

MR SOLOMON‑BRIDGE: Yes, I think that is correct, your Honour.

HIS HONOUR: The applicant’s point is that 198(2B) does not change that. It just places an obligation to do so as soon as is reasonably practicable and that obligation can co‑exist even with representations or consideration of representations to revoke a decision.

MR SOLOMON‑BRIDGE: Yes, I accept that so far as it goes. But the introduction – of course, I rely upon the introduction of 198(2B) because, in my submission, it shows a coherence in the Act ultimately for the importance of and practical duty of an applicant or plaintiff in the current circumstances to make their representations within time. It would be an almost unworkable if not at least unlikely construction to have a person in the midst of removal, or just having been removed, or being decades after the fact of having been removed, making representations seeking revocation of the original decision and while that might be an extreme example it is perhaps not a distorting example in the sense discussed in the authorities.

The other extreme example put by my learned friend to justify his construction concerned the circumstance of a person whose conviction is overturned. Can I just draw your Honour’s attention to section 501 of the Act and subsection (10) thereof which is to the effect that:

For the purpose of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:

(a) the conviction concerned ‑ ‑ ‑

HIS HONOUR: This is 501C(10)?

MR SOLOMON‑BRIDGE: No, your Honour, 501(10).

HIS HONOUR: I see, yes.

MR SOLOMON‑BRIDGE: The point being that in terms of character test, a quashed conviction or even a pardon conviction in certain circumstances has a remedial effect. Now, I think the example that Mr Aleksov was putting was what happens if the appellate court has not overturned the conviction yet – at the point that the representations are made? In my submission, there are two responses to that potentially inconvenient circumstance.

The first is a practical response which is that the practice of these matters, as evidenced by this matter itself, is that a person’s cancellation is notified towards the end of their non‑parole period so in this case the plaintiff was notified by letter of 10 July 2018 and we know that from Mr Lawson Bayly’s original affidavit that the first time that he was eligible to be released was 1 October 2018. So we can see that the notification occurs in the last three months of the non‑parole period of the sentence, far beyond any time within which a conviction appeal would have been launched and hopefully resolved. That is the practical response.

The principal response is that if one has 28 days, even assuming the conviction is entered on day 1 and notification of cancellation is entered on day 2, one has still 28 days to make representations and at the very least one would expect to find in someone seeking to challenge their conviction a representation to the effect that the conviction is sought to be overturned and an appeal has either been launched or instructions are pending about that or the like.

It would be potentially an argument going to unreasonableness if the Minister in the face of that articulation that the conviction is going to be challenged proceeded to dispose of representations at that point without allowing for the conviction appeal to take its course. So that is the other response I have to what was posited as perhaps the extreme example in favour of the plaintiff’s construction.

HIS HONOUR: Can I just understand how that would work? As I understand it, if the sentence of imprisonment is imposed and it is a sentence for 12 months or more, then the person will be found to have a substantial criminal record under section 501(7)?

MR SOLOMON‑BRIDGE: That is correct.

HIS HONOUR: That sentence of imprisonment can be a suspended sentence?

MR SOLOMON‑BRIDGE: In the context of the provisions we are concerned about no, because the person has to be in a custodial institution in order to come within the provisions of 501CA, that is to say, full‑time prisoners.

HIS HONOUR: I see, yes.

MR SOLOMON‑BRIDGE: So I think I can say confidently that the only prisoners to whom it would apply would be those whose sentence was not suspended relevantly.

HIS HONOUR: I see. That is why practically the approach that is taken is one to wait until the end or towards the end of the non‑parole period?

MR SOLOMON‑BRIDGE: Yes, and you will see in the – I do not know if it has made its way to your Honour’s chambers but we rely in the joint list of authorities the second reading speech by Minister Morrison and have given the relevant page references. But the short point is that the object of 501CA was to provide a streamlined process so that those – the class of persons who might pose a risk to the community would be either in criminal detention, immigration detention thereafter until they were either removed or their immigration status resolved.

Now, that articulation of the object of the provision fits with the practice as I have articulated it, at least demonstrated in this case that the person’s cancellation is not notified on the first day of the serving sentence but rather towards the end of their prison term. In a sense the Minister’s practice does not resolve the construction point but it is an important – it is perhaps a matter of context which can relevantly be taken into account given the effects of this case.

The other matters of context I think are sufficiently addressed in the written submissions or written response that has been filed on behalf of the Minister, but perhaps can I just note two further matters of emphasis. The first is that Mr Aleksov says that however one describes 501CA(4)(a), which is one of the matters which appear to condition the power in subsection (4), his characterisation of that is essentially, as I understand it, that that is a directory provision and not a mandatory one. Your Honour, I have referred in the written response but I just wish to emphasise ‑ ‑ ‑

HIS HONOUR: I think the language of “mandatory” and “directory” has effectively been abandoned by the applicant now.

MR SOLOMON‑BRIDGE: Whether the language has I am not sure the concepts have been.

HIS HONOUR: Yes.

MR SOLOMON‑BRIDGE: Because, as I understand it, the essential contention is that there is no argument for an implied power to waive or extend time and that is an important concession in this case because, as your Honour rightly identified, that might be theoretically a way of establishing the outcome that the plaintiff wants. There are at least two Full Courts that say that that is not a correct way to construe matters of this kind, the point being that the plaintiff has abandoned – not abandoned, not pursued that point.

The way that he frames it, as I understand it, is that it is an obligation on a plaintiff to make the representations within the 28 days but if the obligation is not complied with that does not affect the validity of the Minister’s power and I infer, therefore, the duty and jurisdiction to consider exercise of power once delayed representations have been received.

Now, one of the problems with that approach is articulated in Project Blue Sky – perhaps I will not take you to the decision itself but I have set out in the written submissions important extracts from that and I will just find the reference. It is set out ‑ ‑ ‑

HIS HONOUR: You can probably take it that this Court knows the case almost by heart.

MR SOLOMON‑BRIDGE: Yes, but the important point which, in my submission, is being overlooked by the plaintiff is that Project Blue Sky, so far as it concerns validity of.....it is concerned with the validity of..... It is not concerned with the power or jurisdiction of those that refuse or decline to exercise that power. So, for that reason, in my submission, and for the reasons set out at paragraph 26 of the written response the plaintiff’s argument on the “directory”, “mandatory” or the Project Blue Sky construction really does not get anywhere either.

HIS HONOUR: Yes. It really comes down to what “in accordance with” means.

MR SOLOMON‑BRIDGE: Yes.

HIS HONOUR: Do you accept that the Minister has a duty to consider representations that are made?

MR SOLOMON‑BRIDGE: Within the 28 days – yes, I accept that.

HIS HONOUR: But if the representations are not made, or might not be made within the 28‑day period, then who determines that question?

MR SOLOMON‑BRIDGE: It is in a sense perhaps a poor analogy, but in the way that Ex parte Cram and other cases in this Court have shown an administrator is entitled to form an opinion about whether they have jurisdiction or power. Practically it would be, one assumes, as in this case, an officer of the Department who receives the representations, does a calculation and decides – or makes an assessment that the representations have been received beyond the 28 days required.

HIS HONOUR: But it has to be – as I understand your submission it has to be much more than that. It is not just whether the representations are received within the particular time, it is whether the representations contain the full name of the applicant, whether they contain the identification number, whether they are properly translated, whether expressed in a different language, whether they contain all of the matters that are prescribed in the regulations.

MR SOLOMON‑BRIDGE: Can I make the submission, your Honour, that the regulations, in my submission, cannot be used as a way of construing the statute. If there is something so proscriptive and so burdensome in the regulations that it might affect the practical compliance of making representations within the time line, that might be an argument as to the validity of that part of the regulation, either on grounds of unreasonableness or disproportionality or ‑ ‑ ‑

HIS HONOUR: As I understand the applicant’s submission, it is not to say that the particular regulations have to govern the construction but that 501CA(3)(b) contemplates that the invitation, being an invitation “in the manner ascertained in accordance with the regulations” will, almost by definition, be prescriptive as to content and detail, whatever that content and detail might be.

MR SOLOMON‑BRIDGE: Yes, well, your Honour, in my submission, the particular complaint was to draw your Honour’s attention to the other sundry matters in regulation 2.52 and in a sense, if one actually looks at the parent Act, it is neutral on what the invitation might comprise. It certainly contemplates a period within which the representations will be made and then it says that there will be a manner for making the representations but, beyond that, it does not contemplate that there will be any particular prescription as to the content of the invitation and representations pursuant to it.

So to fix upon, perhaps, matters which might be difficult or which might cause issues for a prisoner by reference to the regulations, in my submission, does not assist in resolving what the Act – the parent Act itself means. As I say it might be in a different person’s case a reason for challenging validity. I am not obviously saying that would be a good reason but that would be the vehicle or the argument for prosecuting those matters, not to challenge or to use it as a contextual reason for reading down what the parent Act requires.

HIS HONOUR: It is not so much reading down as the contrast perhaps between the words “in accordance with the invitation” in (4)(a) and the words “in accordance with the regulations in (3)(b). So in (4)(a), the accord is an accord with the invitation generally, whereas (3)(b) is expressed to contain both an invitation that is required to be made and that the invitation itself will contain matters about the period and accordance with the regulations.

MR SOLOMON‑BRIDGE: Yes. I accept – the Minister’s construction means that provided the regulations are valid in all respects that a representation is not “in accordance with” those matters would not engage the duty of the Minister. In the Federal Court I made as well a tentative submission that perhaps the Acts Interpretation Act which pertains to substantial compliance with forms might also have some bearing on that question so far as it was dealing with matters not to do with the period within which the representations might be made - I believe that is 25C of the Acts Interpretation Act. Those are matters – and these are matters which highlight that if this is to go further it is properly ventilated in perhaps the lower courts to have considered disposition and opinions on the metes and bounds of those issues.

HIS HONOUR: Yes.

MR SOLOMON‑BRIDGE: I must accept that there is no apparent distributive application of subsection (4)(a) such that accord with the time period is the only accordance which is required. The section in terms says the representations must be “in accordance with the invitation” which, as your Honour rightly notices, has both matters of lodgement in terms of time but also manner in terms of what could only have been contemplated particulars of the representations themselves.

I will just check my notes, your Honour, to ensure that I have picked up on those – on all the matters I wish to address your Honour orally. I otherwise rely on the written response which dealt with the other contextual matters relied upon by the plaintiff. The only matter that was not dealt with because it has not been raised until yesterday’s outline was the analogy with the 84‑day rule in the Tribunal.

Your Honour, the brief response is that is a very different question because on the example by analogy that has been proffered the Tribunal’s jurisdiction is engaged by a valid application. It must dispose of the application within 84 days. That is a different question than what we are concerned with here which is whether the duty of the Minister was ever truly engaged and it is this. It is not a question of the duty being engaged but perhaps there is a self‑executing deadline and, in my submission, the duty is never engaged unless representations are made in accordance with the invitation and for that reason that analogy is inapt. Those are the submissions.

HIS HONOUR: Just one final question – are there any decisions in the Federal Court that have had the benefit of any argument on this issue and considered it?

MR SOLOMON‑BRIDGE: No. The short answer is no. The working assumption in the Federal Court, including the Full Court, has been that compliance with the time limit is required and infects the – the Forster Case which has been put in the list of authorities – I will just give for the transcript the reference – Forster v Minister for Immigration and Border Protection (2018) 264 FCR 58. That Full Court case and there are other single Justice decisions – they depart from the premise that one must make representations within the 28 days and, of course, in that particular case it was a factual question as to whether the particular applicant had made the representations or not within the ‑ ‑ ‑

HIS HONOUR: In that case there was consideration by the Minister, but the Minister refused to revoke on the basis that the representations had been made out of time.

MR SOLOMON‑BRIDGE: Your Honour, as I recall the case it was very much as it is in this case which is to say a departmental officer responded to Ms Forster with a letter to the effect that the representations had been made out of time. The relevant discussion of the background in that case begins on page 60 of the report and most usefully at page 61 in paragraph 11 there is a discussion of, in a sense, what the basis of dispute was, including an apparent common ground that if it had not been made within the 28 days of representations then there was no power to revoke.

There was, as I recall from that decision, and I am trying to find the reference, no decision, as it were by the Minister to refuse to revoke. Rather, there was much as in this case a letter saying that there was no power to which, in my submission, is the equivalent of a declining to consider to exercise the power.

HIS HONOUR: This is at paragraph 12 where the Full Court says that when the Minister came to deal with her revocation request:

the Minister took the view that it had not been made within the 28 day period. He concluded that he had no power, therefore, to accede to the request –

That reads very much like the request was considered but that the Minister took the view that it had to be declined because of non‑compliance with (4)(a).

MR SOLOMON‑BRIDGE: Well, I go back to what I said about Cram and other cases. Of course the Minister or some of his officers will have to form an opinion about whether he has power but it is a different question from having found the existence of power. One considers the matters in subsection (b) which is does the person on the basis of the representations pass the character test or is there some other reason and that is the consideration – the relevant consideration to which I refer. In my submission there has to be a functionary who determines compliance or accordance with the invitation. That does not mean that there has been a duty engaged let alone a duty to consider the substantive matters provided for for the revocation of the visa pursuant to subsection (4).

HIS HONOUR: Yes.

MR SOLOMON‑BRIDGE: I trust that I – I hope I have not misled you factually on the Full Court’s case. My submission is not altered by what is said in paragraph 12 about the circumstances of the factual substratum.

HIS HONOUR: Yes, thank you very much, Mr Solomon‑Bridge. Mr Aleksov, is there anything you wanted to say in reply?

MR ALEKSOV: If I might briefly, your Honour. The two practical points that were raised by my learned friend about the choice to cancel a visa towards the end of a person’s sentence or perhaps approaching the end of their non‑parole period could not possibly assist this Court in the resolution of the construction question being advanced. It is just a practical consideration which seemed to involve some judgment about non‑compliance with a duty to cancel a visa under section 501 ‑ ‑ ‑

HIS HONOUR: I think it is said effectively in answer to one of your unfairness points.

MR ALEKSOV: If it is to that extent used as a practical consideration to say unfairness might be ameliorated in some respects, fair enough, but it does not really assist the construction of the provision. The other point made was that if representations are made within 28 days and the person says they are challenging their sentence or conviction, then it might be verging on legal reasonableness for the Minister not to wait until the challenge is resolved. Now, that is highly dubious, in my respectful submission, given the timeframes that are involved in challenging sentences and convictions. It is just unlikely the Minister would wait a year or more
for that to occur, especially if the challenge to the sentence is to go up through several courts, which many do.

The only other point I wish to say in reply, your Honour, was that it was put against us that this case is unlike Project Blue Sky because that case concerned the validity of acts done in non‑compliance with a procedural matter whereas this is a case of things not done. But that point does not assist the defendant because if we are right about the construction, then the consequence is that the procedural irregularity of not complying with the time limit is not a thing which deprives the Minister of the duty to consider and then later the power to revoke. So it is precisely like Project Blue Sky, in my respectful submission. Unless there are any other questions your Honour had for me, those are our submissions.

HIS HONOUR: Yes, thank you very much. What I will do is adjourn briefly, perhaps for an hour or so if that is convenient, and if we can re‑establish the video link at 1.30 pm Melbourne time I will give reasons for decision at that time.

MR ALEKSOV: Thank you, your Honour.

AT 11.29 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.45 PM:

HIS HONOUR: Thank you both very much. My apologies for not confirming your availability at 12.30, but this video link was easily able to await the completion of the hearing in the Federal Circuit Court.

The issue presently before this Court is whether an order should be made to extend time under section 486A(2) of the Migration Act 1958 (Cth) for the plaintiff to bring an application for a constitutional writ of mandamus and, if time is extended, whether this matter should be referred for hearing to a Full Court (as the plaintiff submitted) or referred for hearing to the Federal Circuit Court of Australia (as the Minister for Home Affairs submitted).

The underlying issue in this matter is as follows. The plaintiff is a citizen of New Zealand who was present in Australia on a Class TY Subclass 444 Special Category (special) visa. The Minister for Home Affairs says that on 10 July 2018, following the plaintiff’s conviction for an offence, a delegate of the Minister made a decision pursuant to s 501(3A) of the Migration Act to cancel the plaintiff’s visa. By letter dated 10 July 2018, the plaintiff was told that the visa had been cancelled and was invited to make representations about the revocation decision. By forms that were dated 23 September 2018, the plaintiff made representations to the Department of Home Affairs seeking revocation of that decision by the Minister. In making his representations to the Minister, the plaintiff did not comply with regulation 2.52(2) of the Migration Regulations 1994 (Cth) which requires that the plaintiff’s representations for revocation “must be made” within 28 days of being given a notice and particulars of relevant information. The plaintiff said in a covering letter that the delay was because “bail and welfare and legal aid ... all take their time” and “the jail had [his] paper[s] for four week[s]”. On 7 November 2018, the plaintiff was notified by the Department (although not by a delegate of the Minister: see the affidavit of Ms Ward made on 17 October 2019) that the representations were not made within the prescribed timeframe and, therefore, the Minister “cannot consider revoking the decision to cancel your visa”. The plaintiff submits that the 28‑day time limit was not a condition of the Minister’s jurisdiction to revoke the cancellation decision under section 501CA(4) and, therefore, the Minister failed to act on a correct principle. The plaintiff seeks the issue of a writ of mandamus directed to the Minister, requiring him to consider the plaintiff’s request for revocation of the decision to cancel his visa.

Section 486A(1) of the Migration Act provides that an application to this Court for a remedy to be granted in the exercise of this Court’s original jurisdiction in relation to a migration decision must be made within 35 days of the date of the migration decision. This applies irrespective of the validity of the migration decision: see section 486A(5). The relevant date of the migration decision, by section 477(3)(d) of the Migration Act, is the date of the written notice of the migration decision by which it was communicated that the Minister would not consider whether to revoke the cancellation decision. That date was 7 November 2018.

Section 486A(2) provides that this Court may, by order, extend that 35‑day period as this Court considers appropriate if: (a) an application for that order has been made in writing specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and (b) the Court is satisfied that it is necessary in the interests of the administration of justice to make the order. The application to this Court was made on 17 September 2019. The application is therefore slightly more than nine months out of time. Such a delay would usually require the presence of exceptional circumstances before this Court would extend time for the application. The relevant circumstances include the explanation for the delay, any prejudice to the administration of justice as a result of that delay, and the prospects of the applicant succeeding in the application: see, for instance, Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at 473 to 474 [13]; [2000] HCA 67; 177 ALR 491 at 495;Vella v Minister for Immigration and Border Protection [2015] HCA 42; (2015) 90 ALJR 89 at 90 [3]; [2015] HCA 42; 326 ALR 391 at 392; and Zhang v Minister for Immigration and Border Protection [2015] HCATrans 244 at lines 882 to 887.

As for the explanation for the delay and any prejudice to the administration of justice arising from the delay, there is a compelling and cogent explanation for more than seven months of the period after the plaintiff’s receipt of the 7 November 2018 letter. This explanation is that the proceedings that the plaintiff commenced after receipt of the 7 November 2018 letter were inutile for reasons that were not within the plaintiff’s knowledge but were revealed by the Minister after inquiries were made.

Following his receipt of the 7 November 2018 letter, the plaintiff promptly commenced proceedings in the Administrative Appeals Tribunal challenging, for similar reasons as now advanced, what he thought was the refusal of a delegate of the Minister to revoke the cancellation decision. The Tribunal concluded that it had no jurisdiction to determine that question. The plaintiff then sought judicial review of that decision in the Federal Court of Australia. At the conclusion of the trial in the Federal Court, the trial judge queried whether the author of the 17 November 2018 letter was a delegate of the Minister for the purposes of the revocation decision. Following inquiries on behalf of the Minister, on 11 June 2019 the plaintiff was informed that the author was not relevantly a delegate of the Minister. This meant that there had been no decision of “a delegate” under section 501CA(4) of the Migration Act as was necessary for the jurisdiction of the Tribunal: see section 500(1)(ba).

Therefore, prior to 11 June 2019 the reason that caused the application in this Court was neither known nor immediately or reasonably discoverable by the plaintiff. That reason rendered moot the issues which the plaintiff had sought to agitate in the Administrative Appeals Tribunal and in the Federal Court. There are strong reasons that support an extension of time if there is sufficient merit in the application. However, there remains a need to explain the plaintiff’s delay in filing his application in this Court for the period after 11 June 2019 or, perhaps more accurately, as the Minister submitted, for the period following a reasonable time after 11 June 2019. That delay is a little more than two months.

The affidavit evidence from the plaintiff’s solicitor, Mr Lawson Bayly, provides some explanation for this further delay. In short, between June and September 2019, the plaintiff’s solicitors were conferring about the terms as to costs upon which the Federal Court proceedings would be discontinued. That matter remains unresolved. Mr Bayly’s evidence is that he was concerned that commencing proceedings in this Court without finalising the costs position in the Federal Court could expose the plaintiff to “substantial and indeterminate” liability. Mr Bayly also describes his attempts from 16 July 2019 to obtain advice from senior counsel, who was overseas at that time, and delays in filing the application due to his absence on leave as well as commitments, including pro bono work, of junior counsel. It is clear that Mr Bayly was not dilatory and that he had taken steps to expedite the preparation of the plaintiff’s application concurrently with his commitments to other clients. In the course of his oral submissions, counsel for the Minister also quite properly accepted that, apart from the general prejudice of delay to the administration of justice, there was no direct prejudice to the Minister as a result of the whole period of delay.

As to the prospects of success, two of the immediately relevant provisions that need to be considered are sections 501CA(3)(b) and 501CA(4) of the Migration Act. Section 501CA(3)(b) requires the Minister to “invite the person [whose visa has been cancelled] to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision”. Section 501CA(4) provides that the Minister “may revoke the original decision if: (a) the person makes representations in accordance with the invitation; and (b) the Minister is satisfied: (i) that the person passes the character test (as defined by section 501); or (ii) that there is another reason why the original decision should be revoked”.

It was common ground between the parties that section 501CA(4) imposes a duty upon the Minister to consider revocation of an original decision if representations are made by an applicant for revocation in accordance with the invitation that the Minister is required to give under s 501CA(3)(b). However, the dispute concerns whether that duty extends also to circumstances where the applicant has failed to make the representations “within the period and in the manner ascertained in accordance with the regulations”.

The plaintiff put his argument in various ways. One submission that he made was that section 501CA(4)(a) did not impose a jurisdictional precondition to the exercise of power by the Minister under section 501CA(4). However, the Minister pointed out the curiosity of a construction that would treat section 501CA(4)(b), which the plaintiff accepted is a jurisdictional precondition, differently from section 501CA(4)(a). The two conditions are both expressed as requirements for the revocation of power by the Minister. On the other hand, the Minister accepts that the two conditions do operate differently in one significant respect: he submitted that the Minister does not have any duty to consider whether representations are made in accordance with the invitation but, if they are so made, the Minister has a duty to consider whether he is satisfied of the matters in section 501CA(4)(b).

Another matter which emerged during oral submissions is the meaning of the words “in accordance with the invitation”. The Minister’s approach was that accord with the invitation requires an accord with the period and manner ascertained by the regulations. This is textually consistent with section 501CA(3)(b) which speaks of the invitation being one to make representations within the period and in the manner ascertained in accordance with the regulations. On the other hand, the gist of the plaintiff’s submissions treated the invitation as being at a higher level of generality than the requirements it contains: it is a requirement of accord with the invitation rather than a requirement of accord with the regulations.

The parties were unable to identify any case which had ever considered these issues or related issues in any detail. The Minister referred to the decision of Justice Perry treating a cognate provision to section 501CA(4)(a) as imposing a jurisdictional precondition: see Roach v Minister for Immigration and Border Protection [2016] FCA 750 at [29], and [91] to [92]. However, there seems to have been little or no argument on this point in that case and no submissions about the content of the jurisdictional precondition. Further, her Honour proceeded on the basis agreed between the parties that where the two conditions were met, the Minister had no discretion to refuse to revoke the cancellation: the word “may” means “must”: see Julius v Lord Bishop of Oxford (1880) 5 App Cas 214 at 225. As the Minister submitted, the Full Court proceeded on the same assumption, again as agreed by the parties, in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at 555 [31]. This assumption does not appear to have been the subject of any argument in these cases.

The parties also referred to the decision of the trial judge and the Full Court of the Federal Court of Australia in Forster v Minister for Immigration and Border Protection (2018) 264 FCR 58. But, again, the point does not appear to have been argued in that case. There, Justice Perram described the Minister as having considered that he did not have power to make a revocation where the representations were made out of time.

The parties made submissions about various other matters of context. Prominent amongst those was the submission of the Minister that, in the context of imminent removal, it is unlikely that Parliament could have intended that revocation requests might be made at any time and potentially well after the time during which a conscientious applicant would have applied for revocation. However, the plaintiff accepted that the mere fact that an application is considerably out of time might be the basis for refusal to revoke the cancellation and that this need not interfere with the Minister’s duty under section 198(2B) to remove an unlawful non‑citizen as soon as reasonably practicable. The plaintiff also points to the context of provisions such as section 501C(10), which contain a power to make regulations with a jurisdictional prerequisite that a person is a detainee before representations about revocation can be made. The plaintiff contrasts the words of that subsection, “is not entitled to make representations”, with the words of section 501CA(4) “makes representations in accordance with the invitation”.

There were other submissions by each of the parties concerning the proper interpretation of section 501CA(4). The plaintiff submitted that a jurisdictional precondition would give rise to unjust consequences including (i) delays caused by prison authorities or the circumstances of immigration detention adversely affecting a person’s opportunity to make representations, or (ii) a short delay by the plaintiff making representations, beyond the permitted time, preventing consideration of revocation in circumstances where a person’s conviction giving rise to cancellation is subsequently quashed, or (iii) preventing the Minister from considering additional representations made out of time in circumstances where the Minister himself seeks those further representations. The plaintiff also submitted that a jurisdictional precondition in section 501CA(4) is unlikely to have been intended by Parliament, because it would not merely impose a strict time limit but would also prevent the exercise of power by the Minister if the representations did not include all of the details that might be required by the regulations. Of course, the precise details of the regulations, such as those in regulation 2.52(4)(a), (b), (c) of the Migration Regulations, cannot govern the interpretation of the legislative provision. The Minister also answered these submissions by pointing to the additional time given under the Migration Regulations for those people who have had their visas cancelled while in custody (compare regulation 2.52(2)(a) and regulation 2.52(2)(b)) and pointed to the obligation that section 198(2B) of the Migration Act places upon the Minister to remove an unlawful non‑citizen “as soon as reasonably practicable” when the conditions in that subsection are met.

It is neither necessary nor appropriate to descend into any more detail concerning the merits of all of these various submissions and those related to them. It suffices to say, and to say no more than, that I am satisfied that the plaintiff’s submissions are sufficiently arguable in the circumstances of this case to justify the extension of time required by the plaintiff. The circumstances of this case include (i) the explanations for the delay, including the cogency of the explanation for the period until 11 June 2019; and (ii) the lack of any particular prejudice to the Minister beyond the general prejudice of allowing the application to proceed. I am, therefore, satisfied that it is necessary in the interests of the administration of justice that an extension of time should be granted.

The Minister submitted that this matter should be remitted to the Federal Circuit Court of Australia. The plaintiff submitted that it should be referred to a Full Court of this Court. The power of remitter in section 44 of the Judiciary Act is designed in part to “ensure that this Court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court”: see Ravenor Overseas Inc v Readhead [1998] HCA 17; (1998) 72 ALJR 671 at 672 [5]; [1998] HCA 17; 152 ALR 416 at 417. I accept that the presence of the plaintiff in immigration detention means that there is a basis for the matter to be determined by this Court, bypassing the usual process of decisions by the Federal Circuit Court and Federal Court. However, the Minister pointed to telephone and video hearings currently, and admirably, being conducted by the Federal Circuit Court, presumably from remote locations, even in the present circumstances of COVID-19. He submits that this case is a candidate for such a hearing.

There are also other matters that significantly militate in favour of remittal. Even assuming that the plaintiff is correct that there are a number of similar cases in the courts below, and even assuming that these issues might be suitable for determination by a Full Court of this Court, a better vehicle for determination of the issues by this Court would be a case where the point had been decided in the Federal Court. This is because it may be that in light of the reasons of the courts below, which will have had the benefit of full argument, it could become apparent that the issue of interpretation is not suitable for special leave to appeal. Alternatively, if special leave were granted, this Court would have the advantage of considering the issue in light of reasons which expose the opposing arguments and with the benefit of refined submissions based on those reasons.

Perhaps the most compelling reason why remittal is appropriate, however, is that this application is evolving, almost by the day. In oral submissions this morning, the plaintiff’s arguments were refined in the manners I have already discussed. There was also a substantial change to the approach of the plaintiff in the last 24 hours.

By proposed amendments made on 12 March 2020 the plaintiff sought to introduce new grounds asserting that (i) the delegate who, in the 10 July 2018 letter, purported to exercise the power to invite the plaintiff to make representations was not a person who was authorised to revoke the cancellation decision under the relevant instrument; and (ii) the 10 July 2018 letter inviting representations misstated the timeframe in which the plaintiff was entitled to make representations, with the commencement of the time period based upon deemed notice rather than actual notice, and therefore failed to give him the matters required by section 501CA(3)(a) or the invitation required by section 501CA(3)(b). The first of these two grounds relied upon the decision of Justice Rares in the Full Court of the Federal Court of Australia in EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230; (2019) 374 ALR 272, a decision which is presently the subject of an application for special leave to appeal to this Court. Following the amended response of the Minister, however, the plaintiff purported to abandon reliance upon “the EFX17 ground”. In oral submissions this morning, counsel for the plaintiff confirmed that the plaintiff abandoned reliance upon the amended application entirely.

It is clear, therefore, that the issues raised in this application are still evolving and being refined. I say this without any implied criticism of solicitors or counsel for the plaintiff, because it is entirely appropriate for the factual and legal basis of a case to evolve and become refined as the case develops from its inception. However, these matters point to why it is appropriate for the matter to be remitted to the Federal Circuit Court, if that court has jurisdiction, rather than to be referred to a Full Court of this Court.

Section 44(1) of the Judiciary Act 1903 (Cth) provides that this Court may remit a matter to any court “that has jurisdiction with respect to the subject‑matter and the parties”. Section 476B(1) of the Migration Act permits a matter that relates to a migration decision to be remitted only to the Federal Circuit Court of Australia. Section 476B(2) provides that this Court must not remit a matter to the Federal Circuit Court unless that court has jurisdiction in relation to the matter under section 476. Accordingly, if the Federal Circuit Court lacks jurisdiction to hear the plaintiff’s application, there is no power for this Court to remit the matter: see also MZXOT v Minister for Immigration and Citizenship [2008] HCA 28; (2008) 233 CLR 601 at 624 [41] to [42].

Section 476(1) of the Migration Act provides that the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as this Court has under section 75(v) of the Constitution, other than in relation to certain kinds of decisions excluded by section 476(2), including, relevantly, a “primary decision”. A primary decision relevantly includes a decision that is reviewable under section 500 of the Migration Act, including a “decision[] of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa”: see section 500(1)(ba) of the Migration Act. The Minister accepts here that since the author of the 7 November 2018 letter was not a delegate of the Minister, there was no primary decision so that section 476(2) has no effect. The Minister therefore properly concedes that that the Federal Circuit Court has jurisdiction to hear the plaintiff’s application, provided that this Court has first granted an extension of time: see Zhang v Minister for Immigration and Border Protection [2015] HCATrans 244 at lines 854 to 858.

For these reasons, this proceeding should be remitted to the Federal Circuit Court. As to costs, it is appropriate that the costs in this Court, which included much substantive argument about the merits of the case, should abide the outcome in the Federal Circuit Court.

Subject to any submissions the parties wish to make, I make the following orders:

1. Pursuant to section 486A(2) of the Migration Act 1958 (Cth), the time within which the plaintiff’s application for a constitutional writ is to be made is extended to 17 September 2019.

2. Pursuant to section 44(1) of the Judiciary Act 1903 (Cth), the plaintiff’s application for a constitutional writ is remitted to the Federal Circuit Court of Australia, Melbourne Registry.

3. The application continue in the Federal Circuit Court as if steps taken in the application in this Court had been taken in that court.

4. The Registrar of this Court forward to the proper officer of the Federal Circuit Court photocopies of all documents filed in this Court.

5. Costs be in the cause in the application as remitted.

6. The costs of the application to the date of this order be according to the scale applicable in proceedings in this Court and thereafter be according to the scale applicable to proceedings in the Federal Circuit Court and in the discretion of that court.

Mr Aleksov and Mr Solomon‑Bridge, anything further?

MR ALEKSOV: No, your Honour.

MR SOLOMON‑BRIDGE: Your Honour, my learned friend might be able to assist. I wonder whether a separate enlargement is required under the Rules or whether it is simply an extension of time under the Act which is sufficient, but perhaps Mr Aleksov knows the answer to that.

MR ALEKSOV: .....under the Rules, but I understood your Honour to be making those orders as well.....

HIS HONOUR: Yes. I should make it clear that the enlargement of time is made both under the Migration Act and rule 4.02 of the High Court Rules 2004 (Cth) and I will amend order 1 to that effect.

MR SOLOMON‑BRIDGE: Thank you, your Honour. If the Court pleases, there were no further comments on the form of order from the Minister.

HIS HONOUR: Yes, can I just thank both parties and solicitors for appearing by remote location. It seems to me that the video technology has worked extremely well, particularly due to the very hard work of the IT department in this Court.

The Court will adjourn.

AT 1.10 PM THE MATTER WAS ADJOURNED