EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 (27 September 2021) (Yates, Griffiths and Moshinsky JJ)


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