28 days to apply to have the mandatory cancellation revoked

 
 

The effect of Reg 2.52 is that a person who has had a mandatory cancellation of his or her visa has 28 days to apply for a revocation of that cancellation. There are no extension of time provisions. But s 501CA(3)(a) permits the minister to give notice of the decision ‘in the way that the Minister considers appropriate’.  There is no prohibition on the Minister or the delegate issuing a second notice which would re-set the time.

However, one could not force the delegate to re-issue the notice. There have been a number of cases over the years where an obligation of ‘good faith’ is a necessary element of the proper process of administrative decision making (see paragraph para 26, Rodwell v Minister of Immigration, Local Government & Ethnic Affairs [1992] FCA 313; (1992) 28 ALD 195 (Extract) (1 July 1992). But such notions are only useful as persuasive tools rather than the being the basis for any legal requirement.

The format of the application for revocation contains some special requirements set out below. Here is the text of the regulation dealing with the revocation of the mandatory visa cancellation:

Reg [2.52] (1)      This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.

 [(2) repealed/substituted by SLI 2014, 199 with effect on and from 12/12/2014 - transitional/application see Sch 13 3803(2) - LEGEND note]

 [2.52] (2)      The representations must be made:

(a)   for a representation under paragraph 501C(3)(b) of the Act — within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Act; and

(b)    for a representation under paragraph 501CA(3)(b) of the Act — within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.

 [2.52] (3)      The representations must be in writing, and:

(a)      in English; or

(b)      if the representations are in a language other than English — accompanied by an accurate English translation.

 [2.52] (4)      The representations must include the following information:

(a)      the full name of the person to whom the representations relate;

(b)      the date of birth of that person;

(c)      one of the following:

(i)      the applicant’s client number;

(ii)      the Immigration file number;

(iii)      the number of the receipt issued by Immigration when the visa application was made;

(d)      if the visa application was made outside Australia — the name of the Australian mission or Immigration office at which the visa application was given to the Minister;

(e)      a statement of the reasons on which the person relies to support the representations.

 [2.52] (5)      A document accompanying the representations must be:

(a)      the original document; or

(b)      a copy of the original document that is certified in writing to be a true copy by:

(i)      a Justice of the Peace; or

(ii)      a Commissioner for Declarations; or

(iii)      a person before whom a statutory declaration may be made under the Statutory Declarations Act 1959; or

(iv)      if the copy is certified in a place outside Australia:

(A)      a person who is the equivalent of a Justice of the Peace or a Commissioner for Declarations in that place; or

(B)      a Notary Public.

 [2.52] (6)      If a document accompanying the representations is in a language other than English, the document must be accompanied by an accurate English translation.

 [2.52] (7)      For section 501C of the Act (see subsection (10)), a person is not entitled to make representations about revocation of an original decision if:

(a)      the person is not a detainee; and

(b)      the person is a non-citizen in Australia; and

(c)      either:

(i)      the person has been refused a visa under section 501 or 501A of the Act; or

(ii)      the last visa held by the person has been cancelled under either of those sections.

When does something happen on the day

 Zhuhui LI v Minister for Immigration and Border Protection, [2014] AATA 674, 16 September 2014, Senior Member P W Taylor SC, found as follows in relation to when did a visa start if granted on a particular day:

  8.The ordinary position in relation to commencement of legislative provisions is that they take effect from the first moment of the day. In this respect, and others, the law is generally said to take no notice of parts of days: Tomlinson v Bullock (1879) 4 QBD 230 at 232.

 Senior Member P W Taylor SC found that a visa which started on a particular date started at midnight the night before, (ie in airline timetabling time or military time, 00.01). He had to deal also with this provision:

Section 68   When visa is in effect
[68] (1)      Subject to subsection (2), a visa has effect as soon as it is granted.

[68] (2)      A visa may provide that it comes into effect at the beginning of a day, being a day after its grant:

(a)      specified in the visa; or

(b)      when an event, specified in the visa, happens.

[68] (3)      A visa can only be in effect during the visa period for the visa.

 The case was about whether a person was a permanent resident for the 12 months prior to the citizenship application. One visa ended on one and second visa started the next day.  Unusually there was no evidence as to exactly what day the second visa decision was made.  Senior Member P W Taylor SC made this conclusion even if the visa decision was made on the day the second visa started:

18-20.The principally relevant aspect of the eligibility requirements confronting Mr Li is that he was a “permanent resident for the period of 12 months immediately before” his application: see ACA 2007 s 22(1)(c). The Respondent submitted that this provision was to be applied strictly and literally. More specifically, the Respondent submitted that no interruption in the duration of Mr Li’s permanent residence – whether it be the 9 hours between midnight 19 March 2013 and the start of usual officer hours at 09:00, or unknown instants of time after midnight, was sufficient to require the conclusion that Mr Li could not be regarded as a permanent resident for the requisite period.

 There is a very well-known and established proposition that the law does not concern itself with trifling matters. There is an informative discussion of the application of this principle – often found expressed in the Latin maxim “de minimis non curat lex” – in the judgment of Hill J in Farnell Electronic Components v Collector of Customs (1996) 72 FCR 125. At 72 FCR 128 Hill J cited both the second edition of Benion Statutory Interpretation: A Code and the 4th edition of Halsbury’s Laws of England as authority for the proposition that the de minimis principle was a statement of legal policy, also a rule of statutory interpretation and, as a rule of statutory construction, applied unless a contrary intention applied.

 In the present case the Respondent submitted, albeit primarily in the context of the proper interpretation of s 68(3) of the Migration Act 1958, that the de minimis principle was contrary to the statutory context and could not apply. I agree that the principle cannot apply to achieve a result that a visa period starts before the visa grant decision. I disagree that it cannot apply to, and is contrary to the proper interpretation of, provisions such as Australian Citizenship Act 2007 s 22(1)(c).

 What the Tribunal was saying here is that even if there was a period of illegality of a few hours, this was a trifling when considered in the context of the residential requirements in the Australian Citizenship Act when a 4 year time span was being looked at.

Barbara Davidson