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[(2) repealed/substituted by SLI 2014, 199 with effect on and from 12/12/2014 – transitional/application see Sch 13 3803(2) – LEGEND note]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

Barbara Davidson28 Days to Apply to Have the Mandatory Cancellation Revoked