FEDERAL COURT OF AUSTRALIA
EFX17 v Minister for Immigration and Border Protection [2019] FCAFC 230
ORDERS
Appellant | ||
AND: | MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent | |
DATE OF ORDER: | 16 DECEMBER 2019 |
THE COURT ORDERS THAT:
2. The orders made by the Federal Circuit Court of Australia on 7 November 2018 be set aside and in lieu thereof, it be ordered that:
(a) it be declared that the respondent has not performed his duties under s 501CA(3) of the Migration Act 1958 (Cth) (“the Act”) in relation to the decision of the respondent, by his delegate, made on 3 January 2017 to cancel the applicant’s protection visa under s 501(3A) of the Act.
(b) a writ of mandamus issue requiring the respondent to perform his duties under s 501CA(3) of the Act according to law.
(c) The respondent pay the applicant’s costs.
3. The respondent pay the appellant’s costs.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
GREENWOOD J:
Background
1 On 4 January 2017 in an interview room at the Brisbane Correctional Centre, an officer of the Queensland Department of Corrective Services met with the appellant and handed to him a letter dated 3 January 2017 addressed to the appellant signed by a delegate of the Minister for Immigration and Border Protection. By that letter, the appellant was given notice that the Class XA Subclass 866 Protection visa granted to him on 16 December 2009 had been cancelled and that he no longer held a visa.
2 It will be necessary to return to aspects of that letter later in these reasons but for present purposes, it should be noted that the body of the letter refers to “additional information” in “Attachment 2” that “explains the consequences of the cancellation of your visa”.
3 The collection of material handed to the appellant at that meeting included an “Information Pack” otherwise called a “Mandatory Cancellation Notification Package”. It seems to be common ground that copies of the papers handed to the appellant that day are contained at pp 50 to 136 (86 pages in all) of the Appeal Book. The delegate’s letter of 3 January 2017 is a six page letter and at p 5 (AB 54) the “Enclosures” are described in this way:
Enclosures
• Important Information sheet
• Revocation Request Form
• Personal Circumstances Form
• Advice by a migrant agent/exempt person of providing information assistance (Form 956)
• Appointment or withdrawal of an authorised recipient (Form 956A)
• Information about legal aid assistance in Australia
• Direction 65
• Attachment 1: character related legislation of the Migration Act and Migration Regulations
• Attachment 2: general information
• Integrated Offender Management System, Sentence Calculation Details report from the Queensland Department of Corrective Services, created on 23 December 2016
4 On 19 December 2016, the appellant was sentenced to seven years imprisonment by the District Court of Queensland for an offence of “acts intended to maim/disfigure/disable” also described by the Integrated Offender Management System as “malicious acts with intent”. The appellant had been in custody in relation to that charge since 14 August 2014. His custodial end date is 13 August 2021 although he was eligible for parole on and from the date of sentencing on 19 December 2016.
5 The appellant is a citizen of Afghanistan. He is a Shia Muslim of Hazara ethnicity. He speaks Hazaragi. However, in a submission dated 9 June 2017 (AB 27-30), by the Prisoners’ Legal Service Inc. (the “PLS”), addressed to the National Character Consideration Centre (“NCCC”) of the Department of Immigration and Border Protection, the PLS (by Ms Helen Blaber), said this:
Capacity
It is our submission that [the appellants] capacity to understand the nature of the visa cancellation and revocation process was significantly impaired.
By way of background, we advise that [the appellant] is illiterate with extremely limited English-speaking capabilities. He instructs that he cannot read or write in any language and did not receive any schooling in Afghanistan or Iran. He instructs that he was raised in a poor farming community in [Ghazni province] and later worked as a shepherd and child labourer in Iran. He instructs that he has never learned to read or write in English and learned to sign his name when he was in immigration detention in Christmas Island in 2009. He has participated in an introductory English language course that focused on basic, conversational English
6 Apart from these matters mentioned by Ms Blaber, counsel for the appellant also emphasises the report of Dr Mark Schramm dated 27 June 2017, a Consultant Psychiatrist to the West Moreton Hospital and Health Service. Dr Schramm had a consultation with the appellant on 9 June 2017 following the appellant’s transfer to the Woodford Correctional Centre. Dr Schramm notes that the appellant “has been a client of the Prison Mental Health Service since [August 2014]” and that “he seems to suffer from a schizophrenic illness (currently under reasonable control with regular antipsychotic medication) occurring on the background of substance abuse and traumatic events in his homeland (including having his throat cut by Taliban soldiers)”.
7 The delegate’s letter of 3 January 2017 and enclosed papers handed to the appellant at the Correctional Centre by an officer of the Department of Corrective Services on 4 January 2017 were given to him, by that means, as a result of an email of 3 January 2017 (at 2.51pm), sent by the delegate (the same delegate that made the visa cancellation decision and signed the letter of 3 January 2017), to the Brisbane Correctional Centre, in these terms (subject to the redacted parts):
Please note that included with the formal notice is an acknowledgement of receipt – see page 6. Please have [the appellant] complete this page and return a copy to our office, preferably via email or fax. Alternatively, please advise by responding to this email address confirming the date on which [the appellant] received the cancellation notification with the attached documents.
A delegate of the Minister for Immigration and Border Protection has cancelled the visa held by [the appellant] pursuant to s 501 of the Migration Act on 3 January 2017.
Please provide the attached cancellation documentation to [the appellant]. It is important that the full documentation is provided to [the appellant] without delay as there is a limited period of time in which to apply for revocation of the visa cancellation.
DIBP will make arrangements in respect of [the appellant] following their [his] release from criminal custody, including immigration detention pending [his] removal from Australia if necessary.
Thank you for your assistance.
…
[original emphasis]
8 An officer of the Department of Corrective Services obtained the signature of the appellant to the “acknowledgement of receipt”, at p 6 of the 3 January 2017 letter, as requested by the delegate. A copy of the acknowledgement signed and dated 4 January 2017 by both the appellant and the Corrective Services Officer is at AB 44. I will return to aspects of those matters later in these reasons.
9 One other aspect of the PLS submission of 9 June 2017 (which was before the primary judge) should be noted. The Full Court was taken to it by counsel for the Minister (in the context of an issue about aspects of the jurisdictional challenge made by the Minister to the proceedings before the Federal Circuit Court of Australia concerning arguments about a jurisdictional fact in the context of the statutory provisions). The particular matter is that on 9 January 2017 (five days after the appellant was handed the documents), the appellant had a conversation with an Australian Border Force Officer (Ms Amy Crago). Ms Blaber describes, in the submission, the advice given by Ms Crago about that conversation in this way:
Ms Crago advised our service that [the appellant] appeared to be very confused about the cancellation notice but indicated his intention to seek revocation and stay in Australia until a revocation decision had been made.
10 So it seems, notwithstanding the appellant’s indication that he held an intention to seek revocation, he was, at least as at 9 January 2017, appearing to Ms Crago to be “very confused” about the cancellation notice.
11 Although I will turn to the text and context of the relevant statutory provisions later in these reasons, it is sufficient for present purposes to note that the appellant contends that the Minister, by his delegate, having made a decision under s 501(3A) of the Migration Act 1958 (Cth) (either the “Act” or the “Migration Act”) to cancel the appellant’s Protection visa on the ground of an engaged mandatory cancellation obligation (engaged once the Minister is satisfied that the visa holder does not pass the character test on the ground that the person has a substantial criminal record as defined: s 501(3A); s 501(6)(a); s 501(7)(c)), the Minister was also required, as soon as practicable after the making of the cancellation decision, to give the appellant, in the way that the Minister considers appropriate, conditioned by the statutory phrase “in the circumstances”, a written notice setting out the cancellation decision and “particulars of the relevant information”: s 501CA(3)(a). The “relevant information” is information that the Minister considers would be the reason (or part of the reason) for making the cancellation decision, and information that the Minister considers is “specifically about the person”: s 501CA(2)(a) and (b).
12 Apart from those obligations, the Minister must invite the appellant to make representations to the Minister, within the relevant period and in the manner determined in accordance with the Migration Regulations (Cth) (Reg 2.52), about revocation of the cancellation decision: s 501CA(3)(b).
13 The appellant says that in discharging the obligation to give notice of the cancellation decision and particulars of the relevant information, in the way the Minister considers appropriate, the Minister is required to reach that state of considered “appropriateness”, “in the circumstances”, as the statute requires. Those circumstances are said to include factors called the “capacity matters” which are said to be the “characteristics and individual circumstances” of the person to whom the written notice and particulars are to be given, which may affect the individual’s “capacity to receive, read, understand and make representations in response to the notice”. The capacity matters are said to include such things as the recipient’s literacy, capacity to understand English, mental capacity and health, and, if in custody, the facilities available to the individual in custody to enable that person to understand the notice and particulars.
14 The appellant says that the act of the delegate of sending the Corrective Services officers a cancellation letter addressed to the appellant attaching the nominated enclosures (for hand delivery to the appellant) with an instruction to secure the appellant’s signature on the acknowledgement form, fails to discharge the Minister’s obligation under s 501CA(3)(a)(i) and (ii), having regard to the circumstances of the appellant and the capacity matters said to inform the scope of the duty.
15 As to the invitation required to be made to the appellant by reason of s 501CA(3)(b), the appellant says that the invitation must be “real and meaningful” and in discharging the mandatory obligation to invite the appellant to make representations about revocation, the invitation must, it is said, take into account the capacity matters specifically relevant to the appellant in “formulating the substance of the invitation; and determining how the invitation was to be given”.
16 The appellant put each of these contentions about the scope and content of the statutory obligation arising under s 501CA(3) to the primary judge in agitating the relief sought in the Federal Circuit Court of Australia.
17 In those proceedings, the appellant sought a declaration that “the delivery of the material and information to the appellant on 4 January 2017 [described as a purported section 501CA(3) notice]) did not comply with section 501CA(3) of the [Act]”. The appellant also sought the grant of the constitutional writ of Mandamus “requiring the Minister or his delegate to take the action required by section 501CA(3) of the [Act] in accordance with law”.
18 The primary judge rejected the appellant’s contentions about the scope and content of the statutory obligation arising under s 501CA(3) (and other grounds concerning limitations in the scope of the delegation, a matter I will return to later in these reasons) and dismissed the appellant’s application before that Court. The appellant contends that the primary judge erred in rejecting those contentions and in dismissing the application.
19 The appellant also says that having identified the true character of the obligations cast on the Minister or his delegate by s 501CA(3)(a) and (b), there was no evidence before the primary judge that provided a basis for finding, as the primary judge did, that the Minister gave the appellant written notice and particulars of the relevant information consistent with s 501CA(3)(a) in a way that could be described as “a way the Minister considers appropriate in the circumstances”(of the appellant), or that the Minister, by his delegate, invited the appellant to make representations for the purposes of s 501CA(3)(b), when the invitation was not real and meaningful having regard to the circumstances of the appellant.
20 The Minister contended before the primary judge (as the Minister does before this Court on appeal) that the Federal Circuit Court did not have jurisdiction to determine the question agitated before that Court. Put simply, that was said to be so because the cancellation decision was not under challenge on any ground of jurisdictional error and the contended failures on the part of the Minister or his delegate to discharge the s 501CA(3) obligations were simply “procedural steps” or “steps along the way” to a possible decision to revoke the cancellation decision (or not to revoke it) under s 501CA(4) if the relevant decision-making contemplated by that subsection ever became engaged by reason of representations having been made within the period, and in the manner required, by the Regulations.
21 Having regard to that contention, it is appropriate to address the jurisdictional question first.
The jurisdictional question
22 Section 476(1) of the Act provides that subject to the section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under s 75(v) of the Constitution. Section 75(v) of the Constitution provides, relevantly, that in all matters in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth, the High Court shall have original jurisdiction.
23 Subject to s 476, the Federal Circuit Court is thus invested with original jurisdiction “in all matters” “in relation to migration decisions” in which, relevantly here, a writ of Mandamus is sought against an officer of the Commonwealth. A “migration decision” is defined to mean, relevantly for present purposes, a “privative clause decision” and a “purported privative clause decision”: s 5 of the Act.
24 A privative clause decision is defined to mean, relevantly, “a decision of an administrative character made, proposed to be made, or required to be made … under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not) ….”: s 474(2). A privative clause decision is, of course, final and conclusive and must not be challenged, quashed or called into question in any court (s 474(1)(a) and (b)) and is not subject to mandamus, certiorari or declaration in any court on any account: s 474(1)(c). However, s 474 sits conformably with s 75(v) of the Constitution because s 474 must be read “so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of jurisdiction conferred by the Act”, and an administrative decision “which involves jurisdictional error is regarded, in law, as no decision at all”: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 (“Plaintiff S157/2002”), Gaudron, McHugh, Gummow, Kirby and Hayne JJ at 506 [76]; Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51], Gaudron and Gummow JJ at 618 [63], McHugh J; at 646-647 [152], Hayne J; see also Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82, Gaudron and Gummow JJ generally.
25 A purported private clause decision is, put simply, a decision purportedly made under the Act (or a regulation or instrument made under the Act) that would be a privative clause decision if there were no failure to exercise jurisdiction or an excess of jurisdiction: s 5E of the Act.
26 On 3 January 2017, the Minister’s delegate cancelled the appellant’s protection visa. That “decision” was made under s 501(3A) of the Act. Section 501 of the Act addresses the topic of the refusal or cancellation of a visa on character grounds. Section 501 is set out below:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the Character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of the Minster – natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
(3B) Subsection (3A) does not limit subsections (2) and (3)
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
….
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
[emphasis in bold italics added]
27 The elements of the character test are set out in s 501(6). Relevantly for present purposes, s 501(6)(a) provides that a person does not pass the character test if the person has a “substantial criminal record (as defined by subsection (7))”, and subsection (7) provides that a person has a substantial criminal record for the purposes of the character test if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Act.
28 Section 501(3A) casts a mandatory obligation on the Minister to cancel a visa if the Minister is satisfied that the person does not pass the character test. The act of cancelling a visa pursuant to that mandatory obligation nevertheless involves making a “decision” to cancel once the Minister is satisfied of the relevant matters. Such a decision is plainly enough a “decision” by definition (s 474(3)(b)), and is treated as a decision by s 501CA(1) by describing it as the “original decision’, and is so treated by the parties in this proceeding.
29 In the proceeding before the Federal Circuit Court the appellant did not call into question the legality of the delegate’s decision to cancel the visa. There was no challenge to the cancellation decision on grounds of want or excess of jurisdiction or on any other ground of jurisdictional error so as to suggest that the decision is “no decision at all” or no decision “under this Act”. That being so, the cancellation decision by the Minister’s delegate on 3 January 2017 is, and remains, a privative clause decision.
30 Nevertheless, the Federal Circuit Court is invested by s 476(1) with original jurisdiction “in all matters” “in relation to” migration decisions in which a writ of mandamus is sought against an officer of the Commonwealth. Even though the cancellation decision itself is not, by reason of s 474(1)(c), subject to prohibition, mandamus, injunction, declaration or certiorari as no challenge is made of want or excess of jurisdiction or any other ground of jurisdictional error with respect to that decision (which would potentially render the decision no decision at all in law under the Act), the question of whether the Minister, by his delegate, has discharged the statutory obligations cast upon him by s 501CA(3)(a) and (b) which “apply” (by reason of s 501CA(1) where the Minister (by his delegate) makes a decision under s 501(3A)), nevertheless engages matters “in relation to” the migration decision (constituted by the privative clause decision to cancel the visa) and those matters, in relation to that decision, are within the Federal Circuit Court’s jurisdiction.
31 The matters, in relation to that decision, are whether the Minister has, by his delegate, discharged the imperative statutory obligation cast upon him to do what the Parliament requires of him in giving a former visa holder an opportunity to make representations about revocation of the cancellation decision. It is important to recognise that by s 501(5) of the Act, the protective rules of natural justice and the Code of Procedure set out set out in Subdivision AB of Division 3 of Part 2, “do not apply to a decision under [s 501(3) or(3A)]”. Thus the protective mechanism contained s 501CA(3) and (4) is the substantive measure of procedural fairness otherwise removed in relation to the cancellation decision by s 501(5) of the Act.
32 Section 476(2) of the Act provides that the Federal Circuit Court has no jurisdiction “in relation to” a privative clause decision, or purported privative clause decision, made “personally by the Minister” under s 501 (or for that matter s 501CA) of the Act. In this case, the decision was made by the Minister’s delegate and thus s 476(2) does not remove from the Federal Circuit Court its jurisdiction invested by s 476(1) “in all matters”, “in relation to” (as described above), the delegate’s migration decision under s 501(3) of the Act.
33 It is convenient at this point to set out the text of s 501CA of the Act:
501CA Cancellation of visa – revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person 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.
(4) 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.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
(6) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(7) A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.
Note: For notification of decisions under subsection (4) to note revoke, see section 501G.
34 Quite apart from the matters discussed at [22]-[32] of these reasons, the following further jurisdictional matters should be noted.
35 Subject to s 476, the Federal Circuit Court is invested by s 476(1) of the Act with the same original jurisdiction as the High Court has under s 75(v) of the Constitution in relation to a “migration decision” made by the Minister’s delegate under s 501CA(3)(a) and (b) where two circumstances subsist: first, where the obligation arising under s 501CA(3) is properly characterised as engaging a “migration decision” by the Minister’s delegate; and, second, where the appellant contends that the decision is susceptible of the remedy of the grant of a constitutional writ contemplated by s 75(v) of the Constitution (in this case a writ of mandamus), directing the Minister’s delegate to decide the statutory matters according to law (that is, in conformity with the requirements of s 501CA(3)(a) and (b)) on the ground of a demonstrated excess or want of jurisdiction or other jurisdictional error.
36 Otherwise, the s 501CA(3) “decision” is a privative clause decision.
37 The question of whether taking the steps, or purporting to take the steps, required by s 501CA(3)(a) and (b) engages a “decision” falls to be decided as a matter of characterisation of that which is required of the Minister (whether by himself or his delegate) by s 501CA(3) having regard to s 474(3) of the Act which provides that a reference in s 474 to a “decision” includes a reference to any one of the many acts or refusals to act set out at s 474(3)(a) to (j).
38 Section 474(3)(g) provides that a reference to a decision includes “doing or refusing to do any other act or thing (that is, an act or thing other than the acts or things already described at (a) to (f) of s 474(3)).
39 Prima facie, as “giving” the appellant the things described at s 501CA(3)(a) and “inviting” the appellant to take the step contemplated by s 501CA(3)(b) do not fall within those acts or things at s 474(3)(a) to (f). Accordingly, s 474(3)(g) is engaged as the “doing or refusing to do of any other act or thing”.
40 Section 474(3)(j) provides that a reference to a decision includes “a failure … to make a decision”. Section 474(3)(j) is directed to a circumstance where the subject matter of the failure concerns an obligation to make a decision, and renders that failure a decision in itself, whereas s 474(3)(g) is concerned with characterising the “doing or refusing to do of any other act or thing” as a “decision” In this case, subject to the discussion which follows of matters of principle deriving from the observations of Sir Anthony Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (“Bond”), the taking of the steps and thus the doing of the acts or things required of the Minister (or his delegate) under s 501CA(3)(a) and (b) have the characteristics of a “decision” for the purposes of the Act, by reason of s 474(3)(g).
41 The decision, so understood, would be a “privative clause decision” for the purposes of s 474(2) (the definitional elements of which are mentioned at [24] and [62] of these reasons) but for the appellant’s contention that it is not a decision “under the Act” in the sense contemplated by Plaintiff S157/2002 by reason of the contended ground of want or excess of jurisdiction due to the contended failure on the part of the delegate to engage with the “capacity matters” that are said to condition a valid exercise of the obligations contained in s 501CA(3).
42 The Minister says that the “doing of the act or thing” contemplated by s 501CA(3) is not a “decision” because doing those acts or things is properly characterised as a “procedural step” by the delegate or a “step along the way towards” a decision contemplated by s 501CA(4), that is, a decision to revoke, or not to revoke, the original cancellation decision.
43 There are two difficulties with this notion, subject to what follows concerning Bond.
44 First, the act or thing contemplated by s 501CA(3)(a) and (b) is a “decision” by reason of the text of s 474(3)(g) of the Act and thus a decision for the purposes of the Act.
45 Second, the character of the act or thing required of the Minister under s 501CA(3) is the means by which a measure of procedural fairness is to be provided to the former visa holder having regard to the non-application of the rules of natural justice to the original cancellation decision under s 501(3A): s 501(5). This substantive mandatory obligation in s 501CA(3)(a) and (b) (as to the characterisation of s 501CA(3)(b) as a statutory obligation, see Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [6]) is not properly characterised as merely a procedural step or a step along the way to something else, a possible later revocation (or non-revocation) “decision”. It is substantive because it is the act or thing that affords the former visa holder the opportunity to be heard (in writing) as to the reasons why the Minister ought to be “satisfied”, in light of the former visa holder’s “representations”, that there is a “reason why the original decision should be revoked”: s 501CA(4)(a) and (b)(ii). Section 501CA(4)(b)(i) contemplates that the former visa holder might also seek to satisfy the Minister that he or she passes the character test, a consideration which in this case has no application.
46 One other matter in relation to s 474(3) should be mentioned.
47 The appellant also says that if the obligation to give the appellant written notice setting out the cancellation decision and particulars of the relevant information, and to invite the appellant to make representations about revocation, does not fall within s 474(3)(g) (or s 474(3)(j)), it nevertheless falls within s 474(3)(h) as “conduct preparatory to the making of the decision”, should the court be satisfied that doing the things required by s 501CA(3)(a) and (b) are properly characterised as procedural steps along the way to a decision under s 501CA(4) to revoke, or not revoke, the original cancellation decision. Those procedural steps along the way would, it is said, be “conduct” anterior and preparatory to a later decision in time under sub-section (4). The observations of Mason CJ in Bond at 335-338, 341-342 are called in aid of this approach. Apart from any other matter, one possible difficulty with this approach is that the relevant steps might not be properly characterised as “preparatory” to decision-making as no decision-making event is engaged at all unless and until the appellant makes representations within the time and in the manner required by the regulations.
48 It is now necessary to say some things about the observations of Mason CJ in Bond (Brennan J agreeing from p 365; Deane J also agreeing subject to his Honour’s additional remarks at p 369; Toohey and Gaudron JJ publishing their own joint reasons).
Australian Broadcasting Tribunal v Bond
49 Although the important observations of Mason CJ in Bond are very well-known, some aspects of the Chief Justice’s observations relevant to the Minister’s contentions need to be noted here.
50 In Bond, Mr Bond (and Mr Aspinall) and companies controlled by Mr Bond (in the sense that he was able to control the composition of the Boards), sought judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the “ADJR Act”) of “decisions, findings and rulings” made by the Australian Broadcasting Tribunal in conducting an inquiry under the Broadcasting Act 1942 (Cth). Eleven “decisions”, and seven “findings or rulings” characterised as “conduct”, were under challenge under the ADJR Act.
51 The statutory framework within which the questions in issue arose for determination in the High Court (and within which the Federal Court was invested with jurisdiction to review the “decisions” and “conduct” under challenge) arose particularly under ss 5 and 6 of the ADJR Act, that is, judicial review of “a decision to which this Act applies” (s 5) and “conduct [engaged in] for the purpose of making a decision to which this Act applies” (s 6).
52 The expression “decision to which this Act applies” was defined to mean “a decision of an administrative character made … (whether in the exercise of a discretion or not) under an enactment” (excluding decisions of the Governor-General and classes of decisions set out in a Schedule to the Act). The term “decision” was not defined by the ADJR Act. However, s 3(2) provided that a reference to the “making of a decision” included a reference to a wide-range of things set out at s 3(2)(a) to (g).
53 As to conduct, s 3(5) provided that a reference to “conduct engaged in for the purpose of making a decision” included the “doing of any act or thing preparatory to the making of a decision”, including, relevantly for the issues in Bond, the taking of evidence or the holding of an inquiry or investigation.
54 Much of the text of those things included within a reference to the “making of a decision” in s 3(2)(a) to (g) of the ADJR Act at the time of the decision in Bond (and now) can be seen in s 474(3)(a) to (g) of the Migration Act relevant to these proceedings, although each of those things, so recited at s 474(3)(a) to (g), are things included within a reference to “a decision” in s 474 rather than a reference to the “making of a decision”.
55 Section 3(2)(g) of the ADJR Act and s 474(3)(g) of the Migration Act each include, either, the phrase “the making of a decision” (as to the former) or the term “decision” (as to the latter), the “doing or refusing to do any other act or thing”.
56 However, s 474(3)(h) brings within a reference in s 474 to “a decision”, “conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation”.
57 Thus, the bifurcation brought about by the ADJR Act as applied in Bond (and now) between judicial review of a “decision” to which the ADJR Act applies and “conduct” engaged in for the purpose of “making” a “decision”, to which the ADJR Act applies, attracts different treatment in s 474(3) of the Migration Act by bringing the preparatory conduct of s 474(3)(h) within the statutory notion of, or reference to, a “decision” within s 474.
58 Also, s 474(3)(j) brings within the term “decision”, “a failure or refusal to make a decision”.
59 It is also important to recognise the object of s 474 within the Migration Act that emerges from the text. The Parliament has chosen to render the s 474(3)(a) to (j) matters as those things included within a reference to “a decision” in s 474. Section 474 is addressing the topic of those “decisions”, “under the Act”, which are treated as “final”. It does that by treating a privative clause decision as “final and conclusive”; by creating a statutory prohibition upon challenging such a decision in any court; and by removing the decision from the reach of prohibition, mandamus, injunction, declaration or certiorari, within the limits of the definition in s 474(2) of a privative clause decision: s 474(1).
60 As earlier mentioned, s 474 sits conformably with s 75(v) of the Constitution because the definition of a privative clause decision in s 474(2) when referring to decisions of the relevant character, made “under this Act”, must be read “so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of jurisdiction conferred by the Act”: Plaintiff S157/2002 at [76].
61 Subject to that construction, s 474(3) provides that when s 474 refers to a “decision” satisfying the definition and subject matter of a privative clause decision within s 474(2), a reference to a “decision” includes all of the things at s 474(3)(a) to (j) so as to render all such decisions final and conclusive and otherwise within the proscription in s 474(1)(b) and (c) of the Migration Act. This is the Parliament’s clear intention so as to foreclose, to the extent possible as a valid law of the Commonwealth, challenges before a Court to a decision falling within s 474(2) and as brought within s 474(2) by s 474(3). As to this conclusion, see Minister for Immigration and Border Protection v SZSSJ (“SZSSJ”) (2016) 259 CLR 180 at [68] by the Court. The reasoning in SZSSJ is necessarily inconsistent with earlier reasoning of the Full Court in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207.
62 The relevant elements of s 474 are set out below:
Part 8 – Judicial review
Division 1 – Privative clause
474 Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
Privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:
…
(5) The regulations made specify that a decision, or a decision included in a class of decisions, under this Act, or under regulations or another instrument under this Act, is not a privative clause decision.
(6) A decision mentioned in subsection 474(4), or specified (whether by reference to a particular decision or a class of decisions) in regulations made under subsection 474(5), is a non-privative clause decision.
(7) To avoid doubt, the following decisions are privative clause decisions within the meaning of subsection 474(2):
(a) a decision of the Minister not to exercise, or not to consider the exercise, of the Minister’s power under subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q, 195A, 197AB, 197AD, 198AE, 351 or 417 or subsection 503A(3);
(d) a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.
63 Although a privative clause decision means a decision of an “administrative character” made, proposed to be made, or required to be made under the Migration Act, and a reference to a decision “includes” the s 474(3)(a) to (j) things, the characterisation of whether a particular statutory subject matter engages a “decision” at all is the subject of some of the observations of Mason CJ in Bond, for the purposes of the bifurcation reflected in the ADJR Act. Reliance is placed by the Minister on some of these observations as characterising that which was required of the Minister (or his delegate) under s 501CA(3)(a) and (b) as merely procedural steps along the way to a possible decision under s 501CA(4).
64 In Bond, the Chief Justice made the following observations about the notion of a “decision”, in the context of the ADJR Act and the distinction drawn by that Act between “decisions” and “conduct”:
(1) The fact that the ADJR Act is a “remedial statute” indicates that “no narrow view” should be taken of the word “decision”: p 335.
(2) However, the reference in s 3(1) to “a decision of an administrative character made under an enactment”, suggests that a reviewable decision is a decision which the statute “requires or authorizes” rather than merely a “step taken” in the course of reasoning on the way to making the “ultimate decision”: p 336.
(3) The “examples” of a decision listed in s 3(2)(a) to (g) of the ADJR Act indicate a decision having the “character or quality of finality”: p 336.
(4) Because s 3(3) of the ADJR Act extends the “concept” of a decision by deeming a report or recommendation made before a decision is made in the exercise of a power, to be “the making of a decision”, the Parliament did not intend the word “decision” (in its non-extended form) to “comprehend every decision, or every substantial decision, made in the course of reaching a conclusive determination”: p 336.
(5) Because s 3(5) suggests that acts done preparatory to making a decision form part of “conduct”, reviewable separately from a decision, those acts do not constitute “decisions”: p 336.
(6) Notwithstanding these competing considerations, a “decision” is one for which provision is made under a statute: p 337. Generally, but not always, that will entail a decision which is final, or operative and determinative, of the issue falling for consideration: p 337.
(7) A conclusion reached as a step along the way, in the course of reasoning leading to an “ultimate decision”, would not ordinarily amount to a decision unless the statute, in addressing the point in question, provided that the decision, though an intermediate decision, might accurately be described as “a decision under an enactment”: p 337.
(8) An “essential quality” of a decision (for the purposes of the ADJR Act) is that it be a “substantive determination”. All of the “instances” of a decision in s 3(2)(a) to (f) of the ADJR Act (see also s 474(3)(a) to (f) of the Migration Act), are “substantive in character”. The reference in s 3(2)(g) to “doing or refusing to do any other act or thing” should be read as referring to the “exercise or refusal to exercise substantive power”: p 337.
(9) The distinction between “decisions” and “conduct engaged in for the purpose of making a decision” is “somewhat elusive”: p 341.
(10) However, once it is accepted that a “decision” connotes a determination provided for under an enactment, which is generally substantive and final and operative, the place of “conduct” in the statutory scheme of the ADJR Act “becomes reasonably clear”. “Conduct”, in the statutory setting, points to “action taken” rather than a “decision made”. “Conduct” looks to the way proceedings have been conducted rather than decisions “along the way” to a final determination. “Conduct” is essentially procedural and not substantive in character: p 342. A challenge to conduct is an attack upon proceedings engaged in before the making of a decision. Accordingly, there is “a clear distinction”, under the ADJR Act, between a “decision” and “conduct engaged in for the purpose of making a decision”: p 342.
65 The statutory setting under the Migration Act requires the doing of the things required to be done under s 501CA(3) to be characterised so as to determine whether those things are a “decision” made, proposed to be made or required to be made under the Act.
66 Section 501CA(3) is remedial and beneficial because it provides a former visa holder with written notice setting out the cancellation decision, particulars specific to the person whose visa has been cancelled and an invitation to make representations as to revocation.
67 It is substantive in character because without it, no submissions about revocation have any statutory standing and the making of submissions is critical to the Minister’s consideration of whether he might be satisfied that there is a reason for revoking the decision. It is substantive because it provides the former visa holder with an opportunity to be heard (in writing) about revocation which has the effect, if a decision to revoke is made, of reinstating the former visa holder to his or her former position. It is substantive because it is enabling of an opportunity to satisfy the Minister that the cancellation decision should be revoked and that the former visa holder should not be deported from Australia.
68 In that sense, s 474(3)(g), like s 3(2)(g) of the ADJR Act, is an obligation required of the Minister of his delegate which is “substantive in character”. It is not merely procedural. Mason CJ, in the statutory setting of the ADJR Act, construed s 3(2)(g) as referring to the “exercise or the refusal to exercise substantive power”. In the statutory setting of the Migration Act, s 474(3)(g) should be read as referring to “the exercise or refusal to exercise a power or obligation”. Nor is it part of a reasoning process leading to a decision. It calls for the discharge of a statutory duty or obligation which engages, as directly as language can, the “doing or refusing to do any other act or thing”. By s 474(3)(g), the doing of the things required by s 501CA(3) are brought within the notion of “a decision” and the character of the things to be done by the Minister is to be regarded as the exercise of a substantive power or obligation.
69 The steps contemplated by s 501CA(3)(a) and (b), brought within the inclusive reference to a “decision” by s 474(3)(g), for the purposes of s 474, must nevertheless have the character of a decision “of an administrative character” made, proposed to be made or required to be made, under the Migration Act. In Griffith University v Tang (2005) 221 CLR 99 (“Tang”), Gummow, Callinan and Heydon JJ at [79] and [80], in construing the elements of the definition of the phrase “decision to which this Act applies”, in the ADJR Act, noted that the “decision” made, proposed to be made or required to be made, must be “of an administrative character” and observed that this phrase casts some light on the “force” to be given to the phrase “under an enactment” [original emphasis]. Their Honours observed that the relationship between those two phrases gives rise to the question: “What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved” [emphasis added]: at [79].
70 Their Honours answered the question in this way at [80]:
The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement.
[emphasis added]
71 The legal right of a former visa holder to be given, in the way the Minister considers appropriate in the circumstances, written notice of the cancellation decision and particulars of the relevant information, and an invitation to make representations to the Minister about revocation of the cancellation decision owes its existence to the “decision”. Thus it is a decision required to be made, under the Act, of an administrative character.
72 In SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207, the Full Court was considering the question of whether “conduct preparatory to the making of a decision”, included within a reference to a “decision” for the purposes of s 474 of the Migration Act by s 474(3)(h), but which conduct was characterised by the Full Court at [43] as “processes [which] had no legal force”, could be characterised as “a decision of an administrative character made, proposed to be made, or required to be made … under this Act” (that is, a “privative clause decision”: s 474(2)). The Full Court noted at [41] the observations of Gummow, Callinan and Heydon JJ at [79] and [80] in Tang, and concluded at [43], in the context of the conduct in question and so characterised, that:
To conclude that each such step is deemed to be a private clause decision by an expansive construction of s 474(3)(h) would be to ignore its absence of legal effect [which should perhaps be “affect”] and would not serve any useful purpose.
73 The doing of the acts or things required to be done by s 501CA(3)(a) and (b) do not have an “absence of legal affect (or effect)”. They do not engage preparatory conduct steps characterised as processes which have no legal force. In that sense, the observations of the Full Court in SZQDZ turn upon the role of conduct preparatory to the making of a decision within s 474(3)(h) in the context of the particular conduct in question in those proceedings. However, if a broader view of that authority is thought to apply, see SZSSJ (and [61]) of these reasons.
The content of the obligation arising under s 501CA(3)
74 The content of the obligation cast by the Act on the Minister (and those acting as a delegate of the Minister) under s 501CA of the Act begins and ends with the text of the relevant sections of the Act construed in context, having regard to the objects of the Act.
75 Section 501CA begins with, in effect, an “application of laws” provision. The section is engaged if the Minister (either personally or by his delegate) makes a decision under s 501(3A) to cancel a person’s visa. As already mentioned, s 501(3A), among other things, casts an obligation on the Minister to cancel a person’s visa if satisfied that the person does not pass the character test because the person has a substantial criminal record, as defined (and in the case of the appellant, the relevant limb of s 501(3A) was that he had been sentenced to a term of imprisonment of 12 months or more): s 501(3A)(a)(i), s 501(6)(a), s 501(7)(c).
76 However, s 501(3A) operates more broadly than the circumstances engaging the appellant’s failure to pass the character test and those broader circumstances are relevant to the relationship between s 501(3A) and s 501CA(3).
77 Section 501CA(1) describes the s 501(3A) cancellation ground as “person serving sentence of imprisonment” for the purposes of the application of s 501CA to such a person. Section 501CA contemplates that the relevant person is a person in imprisonment. As mentioned, because s 501CA applies if a cancellation decision is made under s 501(3A), it is relevant to note aspects of the relationship between the decision made under s 501(3A) and the decision-making engaged under s 501CA(3) of the Act (and a decision which might be engaged under s 501CA(4) of the Act).
78 A decision made under s 501(3A), once the Minister is satisfied of the relevant statutory matters, is made in circumstances where the rules of natural justice and the Code of Procedure do not apply: s 501(5). Thus, although the Minister is satisfied of the relevant objectively ascertainable statutory matters, upon which his or her state of satisfaction is conditioned, no discretion to cancel the visa (or not to cancel it) is engaged and the Minister (or his or her delegate) may well not know of any factors, mitigating circumstances, explanatory considerations or a “reason” or “reasons” which might suggest that a visa cancellation decision solely on the ground of “substantial criminal record”, as defined, ought nevertheless not be made, had the decision-making engaged a discretion within a statutory framework enabling the application of the rules of natural justice.
79 Section 501CA seeks to come to the aid of a former visa holder who finds himself or herself serving a term of imprisonment pending the carrying out of a “[sentence] to death” (s 501(7)(a)), or a term of “imprisonment for life”, (s 501(7)(b)), or a term of imprisonment of “12 months or more” (s 501(7)(c)), all of which are engaged by a decision under s 501(3A)(i) as supporting the notion that for the purposes of the character test, persons facing those sentences have a substantial criminal record: see [26] of these reasons.
80 Section 501CA, in such circumstances, requires the Minister, as soon as practicable after making the cancellation decision, to give the person in imprisonment a written notice that sets out the decision made under s 501(3A) (the “notice”) and particulars of the relevant information, as defined. A notice that “sets out the original decision” would need to set out the factors that engage s 501(3A) recognising that a number of possibilities recited in that section might engage a state of satisfaction in the Minister leading to a mandatory cancellation decision. The Minister must also give the former visa holder “particulars” of the “relevant information”, as defined. The relevant information is information that “the Minister considers” would be the “reason” (or part of the reason) for making the cancellation decision, and information that the Minister considers “is specifically about the person” (the “particulars of relevant information”): s 501CA(3)(a)(i) and (ii).
81 The obligation cast by s 501CA(3)(a) on the Minister is an obligation to give the former visa holder the notice and particulars of relevant information “in the way that the Minister considers appropriate in the circumstances”. Thus, the Minister must consider the way the notice and particulars of relevant information are to be given; and decide a way that he or she considers “appropriate”, “in the circumstances”.
82 Apart from these matters, the second limb of s 501CA(3) casts an obligation on the Minister, as soon as practicable after the making of the cancellation decision, to invite the person to make representations to the Minister “about revocation” of the cancellation decision: s 501CA(3)(b). The representations must be made within the period and in the manner required by the Migration Regulations. Regulation 2.52(1) and 2.52(2)(b) provide that Reg 2.52 applies to representations made to the Minister under s 501CA(3)(b) of the Act and that for representations in accordance with the invitation under s 501CA(3)(b), the representations must be made “within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act”.
83 The representations must be in writing and in English or, if the representations are in a language other than English, they must be accompanied by an accurate English translation: Reg 2.52(3)(a) and (b).
84 The Regulations operate on the inferential footing that neither the Minister nor his delegate is to be put in the position of having to try and read and try and understand documents put to him (or his delegate) in a language with which neither individual (nor the department) is familiar.
85 Section 501CA(3) and (4) of the Act recognise that notwithstanding that the visa has been cancelled as a mandatory matter under s 501(3A) on the ground that the person does not pass the character test, there may be circumstances that suggest that there is “another reason” why the Minister might be satisfied that the cancellation decision should be revoked. The notice, particulars of relevant information and the invitation to make representations about cancellation, provides the former visa holder with an opportunity, and statutory entitlement, to make representations identifying any factors, mitigating circumstances or explanatory considerations out of which the former visa holder might identify a “reason” why he or she says that the Minister should be satisfied that the cancellation decision should be revoked.
86 The Minister may revoke the cancellation decision if satisfied that there is a reason why the cancellation decision should be revoked.
87 Thus, the integrated statutory scheme of s 501 and s 501CA involves a mandatory obligation to cancel a visa under s 501(3A) once the Minister is satisfied of the statutory factors; no application of the rules of natural justice to such a decision; an obligation, as soon as practicable after the making of a cancellation decision, to give the notice and particulars of relevant information in the way the Minister considers appropriate in the circumstances; and the making of an invitation to the former visa holder to make representations about revocation of the original decision.
88 The obligation to “invite the person” to make representations to the Minister about revocation of the cancellation decision is an obligation to be discharged as soon as practicable after making the cancellation decision. The obligation to invite the person under s 501CA(3)(b) is not conditioned by the words “in the way the Minister considers appropriate in the circumstances” which conditions the giving of the notice and the particulars of relevant information under s 501CA(3)(a).
89 The irreducible minimum standard of the statutory obligation under s 501CA(3)(a) to give the person written notice that sets out the original cancellation decision and particulars of the reason for making the original decision and information specifically about the person, in the way the Minister considers appropriate (not at large, but rather “in the circumstances”), is that whatever way is selected by the Minister as appropriate, that way must actually meet the statutory standard of giving “the person” written notice of the decision and giving the person “particulars” of the reason for cancelling his or her visa, and the information must be “specifically about the person whose visa has been cancelled”. Thus, even though the Minister (or his delegate) may have considered the “way” selected for giving written notice of the visa cancellation decision and the “relevant information” “appropriate in the circumstances”, the question is whether, having regard to the statutory scheme of s 501(3A) and s 501CA, the way selected by the Minister or his delegate as appropriate, in the circumstances, discharges the statutory obligation to give the former visa holder notice setting out the cancellation decision and particulars of it. In other words, the way selected by the Minister or his delegate as “appropriate in the circumstances”, is simply directed to the way of giving the notice and particulars and does not diminish the scope, burden and standard of the statutory obligation to give notice.
90 So too, the obligation to “invite the person” to make representations must meet the statutory standard of a real and meaningful invitation to make representations about revocation.
91 The obligation cast by Reg 2.52 on the former visa holder is to make representations in response to the invitation within 28 days after the former visa holder is given the notice and the particulars of relevant information in discharge of the obligation under s 501CA(3)(a) of the Act. Time runs from that moment in time and thus the giving of the notice and particulars in discharge of the statutory obligation is a critical element in the opportunity afforded under s 501CA(3)(b) to the former visa holder to make representations about why the Minister ought to be satisfied that there is another reason (assuming the former visa holder is unable to show that he or she passes the character test) for revoking the cancellation decision.
The circumstances of the cancellation decision and the s 501CA(3) matters
92 A preliminary question is whether the primary judge erred, as the Minister contends, by admitting into evidence the affidavit of Ms Blaber affirmed on 19 September 2017.
93 Ms Blaber is the Principal Casework Solicitor at PLS acting on behalf of the appellant. The affidavit exhibits documents relating to the notice of cancellation of the appellant’s visa and details of PLS’s communications with both the appellant and the respondent concerning the notice of cancellation. The Minister says that Ms Blaber’s affidavit was wrongly admitted because, it is essential to start with the material which was before the Minister; any new material is irrelevant; and, evidence of the manner in which the appellant received the documents, and evidence of what transpired directly as a result of receipt of the documents by the appellant, including his understanding and appreciation of the contents of the notice (and presumably the other documents given to him on 4 January 2017), is also irrelevant. The Minister also says that the affidavit duplicates much of the material already in the Appeal Book in any event. To the extent of any duplication, the appellant accepts that criticism. It should be noted that although the Minister challenges the admissibility of the affidavit, the Minister made brief references to material in it in oral submissions in any event.
94 The primary judge admitted Ms Blaber’s affidavit as relevant and admissible to the extent that the affidavit seeks to record the manner in which the appellant received the notice of the cancellation of his visa; as to the appellant’s acknowledgement of the receipt of the notice; and, as to the events that transpired “directly as a result of such receipt”.
95 To the extent that the affidavit duplicates material already in the Appeal Book, the material is before the Court in any event. To the extent that the affidavit goes to facts relevant to the question of whether the Minister’s delegate discharged the obligations contained in s 501CA(3)(a) and (b) of the Act, the affidavit is properly admitted.
96 On 23 December 2016, Ms Bowdern, a Sentence Planning Adviser within “Sentence Management Services” of the Department of Corrective Services sent an email to “Queensland Prison Parole Liaison” and “Police Liaison Qld” (which seems to liaise with the NCCC within the Department of Immigration and Border Protection), advising that the appellant was in custody at the Brisbane Correctional Centre serving a seven year term of imprisonment with a full-time release date of 13 August 2021 and a parole eligibility date of 19 December 2016. Ms Bowdern asked whether the appellant was “of interest to your department due to information received that the prisoner was born in Afghanistan”.
97 On 29 December 2016, Queensland Prison Parole Liaison (Mr Leung), sent an email to the NCCC asking for urgent advice as to whether the appellant “is liable for consideration for cancellation in terms of the s 501 Legislation”.
98 On 29 December 2016, the NCCC responded advising that the appellant was of interest to the Department “for mandatory visa cancellation”. The author of that email noted that the appellant’s parole eligibility date had passed and asked whether the Parole Board had determined when the appellant would be released on parole.
99 On 3 January 2017 (15:35AEST), the Minister’s delegate signed a Decision Record for the purposes of s 501(3A) of the Act in which he records this:
Because I am satisfied that the visa holder meets the requirements of sections 501(3A)(a) and (b), I am satisfied that the visa holder is liable for mandatory cancellation under section 501(3A) of the Migration Act 1958 and therefore I must cancel their Class XA Subclass 866 Refugee visa granted on 16 December 2009.
100 On 3 January 2017 (2:51pm), the same delegate who had made the cancellation decision sent the email set out at [7] of these reasons to the Brisbane Correctional Centre, Sentence Management Services, copied to the Queensland Parole Board at the Department of Corrective Services. The subject was the “Notification of s 501 visa cancellation” and the email attached documents described as “Notice of mandatory visa cancellation.pdf; Mandatory Cancellation Notification Package – version 07.06.16.pdf”.
101 As indicated in the email quoted at [7], the delegate requested someone within Sentence Management Services at the Brisbane Correctional Centre provide the attached cancellation documentation to the appellant and emphasised that it was important to provide the full documentation to the appellant without delay having regard to the limited period of time within which the appellant would be entitled to apply for revocation of the visa cancellation decision. Particular emphasis was given (as set out in the top section in bold in the email as quoted at [7]) to having the appellant complete the “acknowledgement of receipt” at page 6 of the letter dated 3 January 2017 enclosed within the collection of papers making up the attachments to the email.
102 The letter sets out the grant of the visa on 16 December 2009; the elements of s 501(3A); the basis upon which the appellant is said to have failed the character test: pages 1 and 2. Attachment 1 to the letter sets out the full text of s 501 including s 501(3A), s 501(6) and s 501(7) consisting of 11 pages of statutory text. The letter tells the appellant that his visa has been cancelled and that he no longer holds a visa. He is told that additional information is set out in Attachment 2 which explains the consequences of the cancellation.
103 Attachment 2 is described as “General Information s 501(3A)”. It is a one page sheet which explains the cancellation of the visa, the prohibition upon applying for other visas, the proposition that the appellant is subject to removal from Australia and as to “what happens next?”, the information sheet says that if the appellant decides to “request revocation of the cancellation decision he should complete and return the attached Request for Revocation of a Mandatory Visa Cancellation under s 501(3A) within the specified time period”.
104 Another document described as “Frequently Asked Questions – Mandatory Cancellation” also forms part of Attachment 2. One of the questions is: “I don’t want to leave Australia, what do I do?” The answer is: “When you are advised of a mandatory cancellation you will receive information about how to apply for a revocation of the cancellation decision. If you wish to seek revocation it is very important you do so within the stated timeframe (28 days)”. Another question is this: “What if I haven’t applied for revocation of my visa cancellation within the stated timeframe (28 days)?” The answer is this: “If you have not applied for revocation within the stated timeframe you lose the opportunity to apply and will be removed from Australia at the earliest opportunity. You may apply to the courts if you believe there has been a legal error in the decision to cancel your visa.”
105 The questions above and set out below are in bold in the document. The document also contains the following questions and answers on the topic of revocation:
Q. Can I appeal a mandatory decision to cancel my visa? What is a “revocation”?
A. You may seek revocation of a mandatory cancellation decision from the Department, but the cancellation itself cannot be appealed. The effect of a decision to revoke is to “reverse” the mandatory cancellation decision and reinstate your visa. Revocation will only be considered at your request within the set timeframe. You will be notified in writing of any decision to revoke or not revoke your mandatory visa cancellation.
Q. What kind of information will be the Department ask for when deciding whether or not to revoke my mandatory cancellation?
A. The Department will ask for information relating to your personal circumstances, such as whether you have any children or family in Australia, whether you have ties to the Australian community, and any court, prison or parole reports. If you seek revocation of your cancellation decision, you will be advised what information to provide. The Department may request that you provide further documents, however, the Department may make a decision on your revocation request based on only the information that you provide. Therefore you must take care to provide all relevant information and evidence about your circumstances.
Q. How long after I apply for revocation will it be before a decision is made?
A. We aim to make a revocation decision as soon as possible after receiving a complete revocation request however constantly adjusting priorities within the National Character Consideration Centre mean it is not possible to be specific regarding timeframes.
106 In the list of enclosures at page 5 of the letter of 3 January 2017, Attachments 1 and 2 are the last two documents in a package of documents which seems to comprise the material at page 50 of the Appeal Book through to page 136 (approximately 86 pages). The “Frequently Asked Questions” pages are the last three pages in the bundle.
107 In the body of the letter, the delegate says this about the possibility of revocation:
Opportunity to seek revocation of the cancellation decision
While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations about revoking the decision to cancel your visa.
You are hereby invited to make representations to the Minister about revoking the decision to cancel your visa. The representations must be made in accordance with the instructions outlined below, under the headings entitled “How to make representations about revocation of the decision to cancel your visa” and “Timeframe to make representations about revocation”.
The decision to cancel your visa may be revoked by the Minister under s 501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:
• you pass the character test (as defined by s 501 of the Act); or
• there is another reason why the decision to cancel your visa should be revoked.
The full text of s 501CA of the Act is also included in Attachment 1.
How to make representations about revocation of the decision to cancel your visa
If you decide to make representations about the revocation of the decision to cancel your visa, you can write to us using the attached Revocation Request Form.
Under s 499 of the Act which permits the Minister to issue written directions about the exercise of powers under the Act, the Minister has issued Direction 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which identifies issues that are relevant to the revocation consideration. A copy of Direction 65 is enclosed for your information. You should address each paragraph in PART C of the Direction that is relevant to your circumstances.
Please note that if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel your visa is a delegate of the Minister, they must follow Direction 65. If, however, the Minister makes a revocation decision personally, he or she is not bound by Direction 65, although Direction 65 provides a broad indication of the types of issues that the Minister is likely to take into account in deciding whether or not to revoke the decision to cancel your visa.
…
Your representations must be in writing and in English, or if in a language other than English, accompanied by an accurate English translation (see Regulation 2.52 of the Migration Regulations 1994 (“the Regulations”), a copy of which is included in Attachment 1.
Time-frame to make representations about revocation
Any representations made in relation to the revocation of a mandatory cancellation decision must be made within the prescribed timeframe. The combined effect of s 501CA(3)(b) and s 501CA(4)(a) of the Act and Regulation 2.52 of the Regulations is that any representations MUST be made within 28 days after you are taken to have received this notice.
If you make representations about revocation of the visa cancellation decision but the representations are received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider the representations because they would not have been made in accordance with the invitation, as required by s 501CA(4)(a) of the Act.
Lodging the Revocation Request Form.
If you decide to make representations to the Minister to revoke the mandatory cancellation of your visa, it is essential that you complete and lodge the Revocation Request Form within 28 days after you are taken to have received this notice as this timeframe cannot be extended.
If, following lodgement of the Revocation Request Form within the 28 day period, you wish to provide additional information, you may do so. Provided the additional information is received before a decision whether or not to revoke the cancellation is made, the additional information will also be taken into consideration in making the revocation decision.
As this notice was transmitted to you by email, you are taken to have received it at the end of the day it was transmitted.
Where to send your representations about revocation
Your representations (as made in the completed Revocation Request Form) may be sent by mail, email or fax.
[The letter then sets out the postal address, email address and fax number]
Contacting the processing officer
If you have any queries about this notice, you can contact them by fax or email using the details above. You are free to show these documents to someone you think may be able to help you.
108 Although the letter recites that “this notice was transmitted to you by email” and thus the appellant is “taken to have received it at the end of the day on which it was transmitted”, the letter and attached documents consisting of the Mandatory Cancellation Notification Package was not sent to the appellant by email but rather, sent by email to an Officer of the Brisbane Correctional Centre located in the Sentence Management Services area of the Department of Corrective Services, with a request from the delegate that the cancellation notice and related documents be given to the appellant “without delay” and with an emphatic (in the sense of emphasised in bold as the opening paragraph of the email) request that the officer have the appellant complete the acknowledgement of receipt page at the end of the 3 January 2017 letter and return a copy of it to the office of the NCCC.
109 It is important to remember at this point in the chronology that the appellant, who is about to be handed approximately 86 pages of documents in English by officers of the Department of Corrective Services, is in prison having been a client of the Prison Mental Health Service since incarceration in August 2014. Historically, he has been suffering from a schizophrenic illness due to substance abuse and life threatening traumatic events at the hands of Taliban soldiers. He is truly “illiterate” in the sense that he cannot read or write in his own language having received no schooling in Afghanistan and has “extremely limited English-speaking capabilities”: see [5] of these reasons.
110 At para 4 of Ms Blaber’s affidavit she says that PLS had a number of discussions with the appellant concerning the cancellation of his visa. Ms Blaber says that in respect of each communication she either spoke with the appellant herself or gave instructions to a staff member of PLS to engage with the appellant about aspects of the cancellation of his visa. Ms Blaber says that in connection with these matters, she has considered the documents produced to her at Annexure A to Annexure P of her affidavit. Annexure N to her affidavit is a copy of the Queensland Corrective Services Integrated Offender Management System (IOMS) case notes. As to those case notes, the following matters are noted in the document.
111 On 4 January 2017, the appellant was seen in unit S15 to deliver to him “his visa cancellation”. The case note records that also in attendance were “Gabby James (SMS training), Narelle O’Brien (OD) and Jennifer Rose (OD, training)”. It is not clear who is the author of the case note. However, the entry for 4 January 2017 says this:
I provided the prisoner with his information pack and advised:
- That his protection visa has been cancelled under s 501 of the Migration Act.
- The reasons are due to his substantial criminal record and he is serving a full-time term of imprisonment
- He can request a revocation of the cancellation by writing to ABF within 28 days.
The prisoner advised that he can understand English while talking, but cannot read or write well. He also advised that he wishes to leave Australia and will not be seeking a revocation of the cancellation.
The prisoner is eligible for parole and requested a parole application. This has now been sent to him via internal mail.
Narelle O’Brien is organising a phone call or visit from PLS to assist the prisoner in completing his parole app and to discuss the option of requesting a revocation of the visa cancellation.
Nil issues arose at the time of delivery.
[emphasis added]
112 There is a second and longer entry also for 4 January 2017. It seems to be concerned with an assessment of the appellant and it seems to be consequent upon the earlier events noted above. The third entry is in these terms:
Prisoner [appellant] was assessed in the S15 interview room for the purpose of a Visa Cancellation Notification. Present was A. Ryan (SMU) and J. Rose Snr Psychologist.
Prisoner [appellant] presented to the interview willingly and was polite and compliant during the interview. He reported that he had previously been advised by Katrina at Prisoner Legal Service whilst accommodated at AGCC that his visa would likely be cancelled and he would be deported. Prisoner [appellant] has limited English language abilities and expressed concern with reading and understanding the deportation documentation provided to him during the interview. He requested assistance from another prisoner currently accommodated in S18 and Prisoner Legal Service as he has limited external support in the community. A special phone call was requested and permission sought for Prisoner to receive assistance from his peer in S18.
Prisoner [appellant] maintained appropriate eye contact and there was no evidence of current active mental illness or gross mood disturbance at the time of the interview. He reported a history of perceptual disturbance (auditory hallucinations) however stated he does not experience these at present. Thought processes were organised during the assessment. Prisoner [appellant] reported sleep disturbance resulting from “bad dreams”. He reported he is currently medication compliant however requested a medication review to assist him with his sleep. Email sent to QHealth.
Officer Ryan explained the options of Revocation and Detention Centre processes. Prisoner reported that he wanted to return to Afghanistan to be closer to his family as he was unhappy in Australia with “all the rules”. He is currently eligible to submit a parole application and SMU will provide him with the relevant documents.
IOMS documents and S/DSH history for prisoner [with details of multiple self harm attempts identified, the particulars of which do not need to be recited in these reasons]. During the interview Prisoner [appellant] denied any current S/DSH ideation, intent or plan stating “I haven’t been thinking that way for a long time”. He denied any additional stressors and was receptive to receiving further assistance if needed.
[emphasis added]
113 The IOMS case notes as quoted at [112] reveal that “A Ryan” was present at the meeting with the appellant in the S15 interview room for the purpose of notifying the appellant of the visa cancellation decision. The “acknowledgment of receipt” document is signed and dated by the appellant on 4 January 2017. The document is also signed “A Ryan” next to “Name of Corrective Services Officer”.
114 Although the documents were given by the Corrective Services Officer to the appellant, the IOMS case notes do not record that an interpreter was available so as to explain the documents to the appellant and in particular the letter giving written notice of cancellation of the visa. The case notes for 4 January 2017 show that the appellant expressed concern with “reading and understanding the deportation documentation provided to him during the interview” and although he requested assistance from another prisoner in S18 and from the Prisoner Legal Service, there is no record in the IOMS case notes of assistance being provided either from another prisoner or the PLS. The case notes recite that a “special phone call” was requested by the appellant and permission was sought by him to receive assistance from a prisoner in S18. However, there is no record of a special phone call having been made available to the appellant or support having been received from the prisoner referred to in the notes (although not by name). There is no record in the case notes of steps being taken to contact the Prisoner Legal Service. The case notes recite that the appellant “has limited English language abilities”.
115 The events which occurred on and after 4 January 2017 are relevant at least to the question of whether the appellant had any understanding that documents bringing about the cancellation of his visa had been handed to him in the S15 interview room on 4 January 2017.
116 On 6 January 2017 the PLS spoke with the appellant using a Hazaragi interpreter. The PLS asked the appellant whether he had received any notices from the Department of Immigration and Border Protection. The appellant told the PLS that he had not received any correspondence from the Department about his visa. Ms Blaber says that the appellant did not say that he had received a notice of cancellation of his visa from anyone. On 6 January 2017 the PLS obtained instructions from the appellant to lodge a request for revocation of cancellation of his visa once he had received notice of a visa cancellation from the Department.
117 On 31 January 2017 the PLS sent an email to “Qld Prison Parole Liaison” and to the Department’s s 501 Revocation mailbox advising that Ms Blaber was acting on behalf of the appellant as his migration agent/lawyer attaching the relevant appointment document (Form 956). Also on 31 January 2017, PLS sent an email to the Department of Immigration and Border Protection, FOI Branch, requesting access to documents relating to the appellant held by the Department. The email attached a request in accordance with Form 424A duly signed by the appellant. By that form, the appellant and Ms Blaber sought access to “all documents correspondence and audio recordings on my immigration file”. The form acknowledges Ms Blaber’s appointment to act on behalf of the appellant in relation to the matter.
118 On 2 February 2017 PLS again spoke to the appellant using a Hazaragi interpreter. The appellant was again asked whether he had received any documents or correspondence from the Department. The appellant told PLS that he had not received any documents or correspondence from the Department. The PLS representative advised the appellant that if he were to receive any documents or correspondence from the Department, he should tell PLS about that as soon as possible.
119 On 3 February 2017 Ms Blaber received a letter by email from the Department mistakenly dated 3 February 2016, in response to the FOI request of 31 January 2017 for access to documents. In that letter, the author, Ms Beecroft explains that the request had been refused due to the broad terminology of the request on the footing that it did not “reasonably identify the documents you are requesting and can also be considered as substantially and unreasonably diverting the resources of this agency from its other operations to process in its current state”.
120 On 7 February 2017 the representative of PLS spoke with an officer of the department within the Department’s FOI Branch. The officer advised the PLS that the appellant “may have already been sent a notice of visa cancellation”. Ms Blaber says in her affidavit that the officer stated that it was “unclear whether the notice had been issued to the applicant [appellant]” and advised the PLS to contact the NCCC for information.
121 On 7 February 2017, Ms Blaber revised the terms of her FOI request so as to seek access to “all documents, correspondence and audio recordings in relation to [the appellant’s] protection visa application and visa cancellation”.
122 On 7 February 2017 a representative of PLS spoke with an officer of the NCCC. The NCCC Officer acknowledged receipt of the Form 956 appointing Ms Blaber as the appellant’s representative. The NCCC Officer advised the PLS that an email would need to be sent to the NCCC seeking confirmation as to whether the appellant had been “issued with a notice of visa cancellation”.
123 On 7 February 2017, Ms Blaber sent an email to the NCCC following up that conversation. The “importance” of the email is described as “High”. The email says this:
I refer to the above client and confirm that I act as his Migration Agent. I am writing to enquire whether my client has been issued with any recent correspondence relating to his visa.
Our office sent a 956 form to your office on 31 January 2017 which I understand was received by your office. I am concerned that our office may not have been provided with correspondence sent to our client. We spoke with the NCCC this afternoon who indicated correspondence had been sent to our client however I have not received any correspondence with the exception of a response to our FOI application.
Could this please be attended to as a matter of urgency.
Regards
HELEN BLABER
BA, LLB (Hons), GRADDIPLP
Principal Casework Solicitor
124 On 9 February 2017, Ms Blaber received an email from the “Decision Support Officer (Pipeline Management Unit, National Character Consideration Centre (NCCC)), Character Assessment and Cancellations Branch, Community Protection Division, Visa and Citizenship Services Group, Department of Immigration and Border Protection”. The response to Ms Blaber’s email was this:
Dear Helen
Form 956 has been received by the department, thanks for that. No correspondence has been issued recently to [the appellant] from NCCC.
Kind regards
Grace
Decision Support Officer
[Pipeline Management Unit etc, as described earlier]
125 On 1 June 2017, Ms Blaber received a letter from the Department’s FOI Branch enclosing documents produced pursuant to PLS’s amended FOI Application. The letter is dated 24 May 2017 and it may have been sent by email on 1 June 2017. The letter seems to be stamped as received on 1 June 2017. The documents produced include the notice of visa cancellation issued to the appellant in the form of the Department’s letter to the appellant dated 3 January 2017. Ms Blaber says that prior to this date, PLS had not been provided with a copy of the notice of visa cancellation or informed in any way that the appellant’s visa had been cancelled.
126 On 1 June 2017, Ms Blaber sent an email to the NCCC observing that on 7 February 2017 she had asked the NCCC to address the matters set out as quoted at [123]. Ms Blaber observed that, in the email of 9 February 2017 from Grace, the Decision Support Officer within the NCCC, the PLS had been told that “no correspondence has been issued recently to [the appellant] from the NCCC”. Ms Blaber observed that having reviewed the documents received that day from the Department’s FOI Branch, it was clear that a letter had been sent by the Department to the appellant as recently as 3 January 2017 (although it was actually handed to the appellant with the other documents on 4 January 2017). Ms Blaber also said that she had attempted to speak with the NCCC Officer without success and requested the matter of the cancellation notice to the appellant to be addressed urgently.
127 On 2 June 2017, the NCCC responded by email in these terms:
The client had been issued with a notice of cancellation on 3/01/2017 and he signed the acknowledgment of receipt of the same on 4/01/2017 (attached).
As stated by you in your email below that you were notified by “Grace”, a decision support officer with the NCCC, that “no correspondence has been issued recently to [the appellant] from NCCC” is right as no notification was issued to him after cancellation. Your enquiry was not regarding his cancellation but to enquire whether the client has been issued with any recent correspondence.
128 Remarkably enough, the NCCC officer did not regard the correspondence given to the appellant on 4 January 2017 comprising the significant bundle of documents affecting the cancellation of his visa and potential deportation, as bearing the description “any recent correspondence” so far as the request made on 9 February 2017 about that matter, was concerned.
129 On 9 June 2017, Ms Blaber sent a letter of that date by email to the NCCC setting out much of the chronology described above. Aspects of this letter/submission have been mentioned earlier in these reasons. As to the difficulties confronting the appellant, apart from the matters quoted from the submission at [5] of these reasons, Ms Blaber made these observations:
All of PLS’s communications with [the appellant], except for our first meeting with him, have been conducted through a NAATI-recognised Hazaragi interpreter. We advise that, even with the use of an interpreter, [the appellant] has had difficulties understanding our advice and instructions. This has been the case even when discussing simple topics and processes, such as lodging a parole application and finding approved accommodation. In our view, this reflects that his communication difficulties go beyond that of a language barrier and there are many other factors that impair his understanding. For example, he has been diagnosed with schizophrenia and has experienced significant trauma in Afghanistan, which we consider to have impacted his capacity to communicate effectively.
130 In the submission Ms Blaber acknowledges that the appellant signed an acknowledgment of receipt of the cancellation notice on 4 January 2017 and submits that in the absence of a Hazaragi interpreter the cancellation notice “was not effectively communicated to our client in a language he could understand and as such his signed acknowledgment is meaningless”. Ms Blaber also observes that the PLS spoke with the appellant on 6 January 2017 and 2 February 2017 about his pending visa cancellation and whether or not he had received documents or correspondence from the Department. Ms Blaber observes that, in view of the appellant’s statement that he had not received any paperwork from the Department, it seemed clear enough that the appellant had signed the acknowledgement form “without any understanding of its contents and implications”. Ms Blaber made observations about the strength of the applicant’s underlying case for revocation of the cancellation decision and urged the NCCC to reissue the cancellation notice and invitation contemplated by s 501CA(3)(a) and (b) so as to enable the appellant to “have the opportunity to request revocation”.
131 On 15 August 2017, Ms Celler-Lacey, the Acting Assistant Manager of the Pipeline Management Unit of the NCCC within the Department responded to the request for re-notification to the appellant of the cancellation decision. Ms Celler-Lacey says that the Department has found that the notification to the appellant cancellation of his visa “was legally effective” and “[c]onsequently, there is no grounds for the Department to re-notify [the appellant] of the decision to cancel his visa under s 501(3A)”.
132 The question that arises in the very specific and particular circumstances of this appellant is: did the Minister, by his delegate, discharge the mandatory obligation cast upon him by s 501CA(3)(a) to give the former visa holder written notice setting out the cancellation decision made in reliance upon s 501(3A)(a)(i) and particulars of the required “relevant information”, as defined, by causing the letter of 3 January 2017 and the Mandatory Cancellation Notification Package – version 07.06.16 pdf, all in English, to be handed to the appellant by a Corrective Services Officer on 4 January 2017? That “way” of “giving” the appellant the required written notice and particulars of relevant information, might fall within the statutory description of “the way that the Minister [by his delegate] considers appropriate” (in s 501CA(3)(a) governing the description of the material in (a)(i) and (ii) of s 501CA(3)), but that state of considered appropriateness is conditioned by the phrase “in the circumstances”.
133 It is not clear what “circumstances” the Minister’s delegate took into account (or may have failed to take into account) in considering the way selected as “appropriate in the circumstances”. However, the way selected, as appropriate, of giving written notice setting out the decision and particulars of the relevant information, by handing the appellant the material described at [132], was required to meet the irreducible minimum standard of actually giving the person written notice and the information comprehended by the defined term “relevant information”. In other words, the person must “get notice”. He must be “given notice”, not just handed a suite of documents coupled with a sense of urgency being impressed upon the Corrective Services Officer to make sure that he or she secured the signature of the person on the “Acknowledgement of Receipt” page of the letter. The mandatory obligation is not one of “service”. It is an obligation to “give notice”. If the relevant person has no capacity to comprehend whatever it is that is given to, or served upon, him or her, which is said to satisfy the requirements of s 501CA(3)(a), it is difficult to see how it can be said that the Minister has discharged the obligation to “give” the relevant person “notice”. The question is not simply whether the appellant physically received the documents but rather the scope or burden of the irreducible minimum standard cast upon the Minister by s 501CA(3) as a matter of statutory construction taking into account the relationship between s 501(3A) and s 501CA(3).
134 The circumstances that suggest that the appellant was simply not capable of comprehending the suite of documents handed to him at the Correctional Facility on 4 January 2017 (notwithstanding the virtue of his signature having been secured on the Acknowledgment Form) are these:
(1) The appellant is illiterate in the sense that he is unable to either read or write in his native tongue, Hazaragi.
(2) Consistent with that position, the appellant did not receive any schooling in Afghanistan or Iran apparently as a function of having been raised in a poor farming community in Ghazni Province and having later worked as a shepherd and child labourer in Iran.
(3) He has never learnt to read or write in English.
(4) He was taught how to sign his name when in immigration detention in Christmas Island in 2009. He has, however, participated in an introductory English language course focused on basic conversational English.
(5) Historically, the appellant has been a “client” (patient) of the Prison Mental Health Service since August 2014 having suffered from a schizophrenic illness (which Dr Schramm described in his report of 27 June 2017 as then currently under reasonable control with regular antipsychotic medication).
(6) There seems to be little doubt that the appellant’s schizophrenic condition is at least in part attributable to traumatic events affecting him and his family at the hands of Taliban soldiers.
(7) The IOMS case notes for 4 January 2017 (see [111] of these reasons) note that although the appellant advised that he can understand English while talking, he cannot read or write well. The subsequent case note for 4 January 2017 notes that the appellant has limited English language abilities and expressed concern with reading and understanding the deportation documentation provided to him during the interview. Moreover, the case notes recognise that the appellant requested assistance from another prisoner and from the PLS as he had limited external support in the community. In addition, it seems that the appellant asked for a “special phone call” to be made and sought permission to receive assistance from another prisoner in the Correctional Facility. There is no suggestion that any assistance was available in the form of a special phone call or access to the other prisoner as requested. There is no suggestion in the case notes that an interpreter was available to explain the burden of the documents given to him and for which he duly signed on the acknowledgement page: see [112] of these reasons.
(8) On 6 January 2017 and 2 February 2017, a representative of the PLS spoke to the appellant using a Hazaragi interpreter. Although the appellant was asked on both occasions whether he had received any correspondence or documents from the Department, he told the PLS representative through the interpreter that he had not received any such material. These responses from the appellant on these dates suggest that the appellant had no comprehension or understanding of the fact that he had been given a suite of material by a Correctional Services Officer (which seems to be A Ryan) which constituted documents or correspondence from the Department or any division, section or group within the Department whether part of the “Pipeline Management Unit” or the “National Character Consideration Centre” or the “Character Assessment and Cancellations Branch” of the “Community Protection Division of the “Visa and Citizenship Services Group” of the Department of Immigration and Border Protection.
135 In the circumstances of this particular appellant, having regard to all of these factors set out at [134], the service upon the appellant of the suite of documents handed to him on 4 January 2017 in the Correctional Facility coupled with the urgency impressed upon the Correctional Services Officer to ensure that he secured the appellant’s signature on the acknowledgement page so that there might be no doubt that the appellant had been given the suite of documents, does not meet the irreducible minimum standard of giving the appellant notice of the cancellation decision and the particulars of relevant information.
136 Apart from the obligation to give written notice of the decision and the relevant particulars, the Minister, by his delegate, was required to invite the person to make representations within the period and in the manner determined by the Regulations “about revocation of the original decision”.
137 This obligation also reflects an irreducible minimum standard of ensuring that the appellant is invited to make representations about revocation. If the appellant, in the particular circumstances confronting him, was not capable of comprehending that the material handed to him on 4 January 2017 contained an invitation to make representations, within the time and in the manner determined by the Migration Regulations, which would have the effect of enabling him to put forward facts and circumstances which might satisfy the Minister that there is a reason why the cancellation decision should be revoked, service of the documents on 4 January 2017, having regard to the factors set out at [134], suggests that the invitation contained within the documents in English was not a real and meaningful invitation and thus, not an invitation for the purposes of the Act.
138 It is, of course, true that the appellant was served with a letter in English setting out the cancellation decision and identifying factors relevant to him as an individual and it is also true that the documents handed to him contained an invitation to make representations about revocation. The elements of those matters are set out at [102] to [108] of these reasons. However, having regard to the factors described at [134], giving the appellant those documents in that way and (by those documents), inviting the appellant to make representations about revocation did not discharge the obligations required of the Minister under s 501CA(3) in a real and meaningful way. Having regard to the factors at [138] as discussed more broadly in these reasons, the Minister’s delegate could have taken steps to ensure that an interpreter skilled in the language of the appellant (Hazaragi) was made available to the appellant who was, of course, in custody and readily available to the Minister’s delegate. Alternatively, the Minister’s delegate might have taken steps to ensure that a representative of the PLS was available to the appellant when the documents were handed to him so that someone with an inquiring and analytical mind with the interests of the appellant at heart might have been able to take steps to protect the interests of the appellant. Alternatively again, the Correctional Services Officers who were asked to hand the 86 pages of material to the appellant, on behalf of the Minister’s delegate, might have responded to the appellant’s request to seek the assistance of his fellow prisoner who presumably had some capacity to engage with the appellant. However, the dominant emphasis of the Minister’s delegate was to make sure that the Correctional Services Officers handed the 86 pages of material to the appellant and secured the appellant’s signature on the acknowledgement of receipt form.
139 Two other factors of real importance should be mentioned. First, the appellant was, at the relevant time, in the control and custody of the Queensland Department of Corrective Services and was thus amenable to steps that might have been taken as described in [140] of these reasons. Second, the appellant was familiar to the Minister’s departmental officers in the sense that he had been granted a protection visa as a result of those officers comprehensively considering whether the Minister could be satisfied that the appellant held a well-founded fear of persecution for a Convention reason. All of the relevant circumstances relating to that matter were known to the departmental officers and presumably as a matter of good government record-keeping, those officers had files and documents recording those matters. It must have been apparent to the Department either actually or inferentially that the appellant suffered special disadvantage.
140 It should also be noted that in the letter dated 3 January 2017, the delegate made observations about the timeframe available to the appellant for making representations about revocation. The relevant paragraphs under that heading are set out at [107] of these reasons. However, the point for present purposes is that the delegate, by his letter, was telling the appellant that the combined effect of s 501CA(3)(b) and s 501CA(4)(a) of the Act and Reg 2.52 is that any representations must be made “within 28 days after you are taken to have received this notice”. The appellant was told that if representations about revocation were received “outside the prescribed timeframe of 28 days”, the Minister or his delegate would not be able to consider those representations. Again, the appellant is told, in bold, that it is essential for him to complete and lodge the Revocation Request Form within 28 days “after you are taken to have received this notice” as the timeframe could not be extended.
141 The appellant says that these statements are both incorrect and incomprehensible to the appellant. They are incorrect because the Regulation does not talk about any construct such as “after you are taken to have received this notice”. Regulation 2.52 applies to representations made to the Minister under s 501CA(3)(b) of the Act and it provides by Reg 2.52(2)(b) that the representations must be made “within 28 days after the person is given the notice and particulars of relevant information under paragraph 501CA(3)(a) of the Act” [emphasis added]. Regulation 2.52(2)(b) thus takes up the language of s 501CA(3)(a), which focuses upon the Minister’s obligation to “give the person” the notice and particulars of relevant information with the result that the representations must be made within 28 days after the person is given those things.
142 The appellant says that the relationship between the text of Reg 2.52(2)(b) and s 501CA(3)(a) of the Act reinforces the notion that the question is not whether the appellant received physical documents but whether the Minister has discharged the statutory obligation of “giving notice”.
The issue of the delegation or absence of delegation for the purposes of s 501CA(3)
143 The appellant says that, at least as a starting point, a statutory power or obligation must be exercised or performed by the person on whom it is conferred. The obligations arising under s 501CA(3) are required to be performed by the Minister. However, s 496 of the Act addresses the topic of “delegation” and provides that the Minister “may, by writing signed by him or her, delegate to a person any of the Minister’s powers under the Act”: s 496(1).
144 In the proceeding before the primary judge, it was common ground that the person who exercised the power to cancel the appellant’s visa under s 501(3A) (that is, the person holding the position described as 00001385) held a delegation from the Minister for that purpose but did not hold a delegation to perform or discharge the obligations conferred upon the Minister by s 501CA(3)(a) and (b). Those obligations were performed (and the appellant says purportedly performed) by the person holding position 00001385.
145 Nor did the Correctional Services Officer within the Queensland Department of Corrective Services who handed to the appellant the visa cancellation letter and enclosures, hold a delegation from the Minister in relation to s 501CA(3). As to that act of handing the documents to the appellant, the appellant does contend that the Corrective Services Officer required a delegation to perform that task.
146 As to the discharge of the obligation required of the Minister under s 501CA(3), the appellant says that in order to overcome the circumstance that neither the Minister nor his delegate took the steps required of the Minister under that section, the Minister relies on s 497(2) of the Act which provides that “if the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation except the taking of a decision in each case whether a visa should be cancelled”.
147 That subsection seeks to make clear that the delegation of the power to cancel a visa does not carry with it a “requirement” that the delegate “personally perform” “any task” in connection with the cancellation except, of course, the taking of the decision to cancel (or not) the relevant visa. In other words, the subsection is making plain that the delegate has no obligation to personally perform any of what might fall within the description of “a task” or “tasks” that may also be properly characterised as “in connection with the cancellation” of a visa.
148 The Minister says that giving the appellant, in the way that the Minister considers appropriate in the circumstances, notice setting out the original decision and particulars of relevant information (as defined), and inviting the appellant to make representations about revocation, as required by s 501CA(3), are acts or things properly characterised as “tasks” in connection with the cancellation of the appellant’s visa.
149 The difficulty, however, lies in the Parliament’s selection of the term “task” in s 497(2) which suggests any one or more of the many activities or actions within the wide field of lesser administrative actions or functions that inevitably lead up to and follow upon a decision to cancel a visa or at least have a connection with an exercise of the cancellation power. Such “task” need not be personally performed by the delegate of the cancellation power.
150 However, once it is accepted, as it must be, that the doing of the acts or things (or refusing to do those acts or things) required of the Minister by s 501CA(3)(a) (which involves giving the person the prescribed matters in the “way” the Minister considers appropriate in the circumstances”), engages the exercise of a substantive power or substantive obligation, properly characterised as a “decision” for the purposes of the Act, being a decision that has an affect upon the rights of the former visa holder for all the reasons earlier mentioned, it readily becomes apparent that the acts or things required of the Minister by s 501CA(3)(a) are not merely “tasks” in connection with the cancellation.
151 Similarly, the invitation required to be made to the person, by the Minister, by s 501CA(3)(b) is not merely a task to be performed in connection with cancellation. It is a mandatory obligation of substance cast upon the Minister critical to the person’s opportunity to seek to satisfy the Minister that there is a reason why the cancellation decision should be revoked and his or her deportation avoided.
152 It is true that the doing of the acts or things required of the Minister by s 501CA(3) are properly characterised as “in relation to” the s 501CA(3) “decision” and thus they have a connection with the cancellation decision but they are not merely “tasks” in connection with the cancellation decision. They are not actions falling within the “multifarious functions” making up the broad business of government in its modern incarnation in the sense contemplated by Lord Greene M.R. in Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 (“Carltona”) as discussed in In Re Golden Chemical Products Ltd [1976] Ch. 300 (“Golden Chemical Products”) and explained by Gibbs CJ in O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 at 11 (“O’Reilly”), and Wilson J at 31. I will return to that line of authority shortly.
153 The acts and things required of the Minister by s 501CA(3) are critical elements of the statutory scheme by which the former visa holder is, in effect, given a chance to satisfy the Minister that a reason exists for revoking the cancellation decision. These are no mere tasks required of the Minister. The term “task” is not defined in the Act.
154 Section 497(2) seems to be a statutory embodiment (within the limitations of the text, context and purpose of the Migration Act) of the principle in the line of authorities beginning with Carltona. In Carltona, Lord Greene M.R. said this at p 536 about the regulation in issue in that case:
It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minster. The minister is responsible.
[emphasis added]
155 This, of course, is a question of construction of the regulation in question. This principle was the subject of observations made by Gibbs CJ in O’Reilly. In O’Reilly, the question in issue was one of construction, that is, whether s 264 of the Income Tax Assessment Act 1936 (Cth) required the Commissioner (or his delegate) to personally sign the notice in writing contemplated by that section. The power to issue a notice requiring a person to attend and given evidence before an authorised officer was conferred on the Commissioner. The powers of the Commissioner under the section were delegated to Deputy Commissioners under a delegation power. The notices issued to the taxpayer and his solicitor bore a facsimile of the signature of a Deputy Commissioner stamped on the document by a person occupying the position of Chief Investigation Officer in the Taxation Office. Although the relevant Deputy Commissioner had no personal knowledge of the officer’s intention to issue the notice, the Deputy Commissioner had signed an authorisation instrument authorising persons occupying the position of Chief Investigation Officer to exercise particular powers and functions including the issue of notices (other than notices requiring the giving of information on oath) and authorising the officer to imprint a facsimile of the Deputy Commissioner’s signature on the notice. It was common ground that the delegation to the Deputy Commissioner was valid and that the Deputy Commissioner had no power of sub-delegation. The authorisation was said by the taxpayer to be an invalid sub-delegation or simply an act beyond power. The Commissioner contended that when the Chief Investigation Officer exercised the power he was, as an officer operating within the machinery of government, exercising a power that “remained vested in and delegated to” the Deputy Commissioner. Related to that question was a question of whether s 264 required the Commissioner (or his delegate) to personally sign the notice. That fell to be determined according to “the nature of the power and the relevant circumstances”: Gibbs CJ at 10 and 11.
156 In the context of those matters, Gibbs CJ expressed observations about the line of authorities commencing with the remarks of Lord Greene M.R. in Carltona (as adopted by Denning LJ in Metropolitan Borough and Town Clerk of Lewisham v Roberts [1949] 2 KB 608 at 621, as a principle which Denning LJ thought to be “quite plain” and “implicit in the modern machinery of government”).
157 In O’Reilly, Gibbs CJ said this at 11 and 12:
… I should mention the line of authorities which commenced with [Carltona] and which are discussed in [Golden Chemical Products]. Those authorities established that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorised officer of his department. This result depended in part on the special position of constitutional responsibility which Ministers occupy, and in that respect these authorities are distinguishable from cases such as the present. However, they also rest on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally. Ministers are not alone in that position. This has been judicially recognised. In Commissioners of Customs and Excise v Cure & Deeley Ltd, it was said that the Commissioners in that case were in a position parallel to that of Ministers, and in Ex parte Forster; Re University of Sydney, the Senate of a University was regarded as being in a similar situation. I can see no reason why, in construing sections of the Act which confer powers of the Commissioner, it should not be proper to consider the undoubted fact that the Commissioner could not possibly exercise all those powers personally.
Section 264 confers on the Commissioner a power whose exercise will be likely adversely to affect rights of individuals. This is a reason for inclining in favour of the view that it must be exercised personally. On the other hand, that section, and a number of other sections of the Act, confer on the Commissioner powers which may be expected to be exercised in myriads of cases.
[The Chief Justice then embarked upon the statutory construction exercise].
158 Wilson J at 31, found “the logic of the principle” equally persuasive in its application to the Deputy Commissioner.
159 The Chief Justice was, of course, recognising a principle that “in general” when a Minister is entrusted with administrative functions, he or she may act in performing those functions through a duly authorised officer of his or her department. As the Chief Justice recognised, the question of the application of the general principle fell to be determined according to a question of statutory construction according to the text and context of the particular statute then under examination.
160 The particular content, scope and burden of the functions and powers to be exercised by a Minister of State conferred on him or her by a statutory provision always falls to be determined according to the text of the section conferring the power, duty, function or obligation construed, in context, having regard to other sections of the relevant Act bearing upon the question of construction, and taking into account the purpose served by the Act and the relevant Parts or Divisions engaged by the question in issue. The general principle described by the Chief Justice may well need to yield to the precision of the disciplined statutory question in issue.
161 In the context of the Migration Act, there are, no doubt, a myriad of multifarious administrative functions to be performed by the Minister which must necessarily be undertaken by duly authorised officers of the Department acting within the fabric of the Department’s broad functions and activities. Such tasks fall to be performed by departmental staff. Section 497(2) recognises that when a person holds a delegation to exercise the power to cancel visas, the delegation does not operate to require any task in connection with cancellation to be personally performed by the delegate. Tasks so connected, fall to be performed by the relevant departmental staff.
162 However, as a question of statutory construction, the obligations cast upon the Minister by s 501CA(3) are substantive obligations critical to the relationship between decisions made under s 501(3A) and the opportunity to be provided to the former visa holder to seek to satisfy the Minister that there is a reason why the cancellation decision ought to be revoked, for all the reasons previously identified. The particular content and burden of the obligations to be discharged by the Minister under s 501CA(3) in relation to a former visa holder (including the requirement under s 501CA(3)(a) to give the person “in the way the Minister considers appropriate in the circumstances”) are not properly characterised as simply part of the multifarious functions forming the business of government. Nor are the obligations properly characterised as “tasks” (relevantly connected to cancellation) such that they need not be performed by the Minister or a person holding a delegation to perform the statutory obligations under s 501CA(3).
163 It follows that the steps taken by the person occupying the position described as position 00001385 had no authority to take those steps and thus, the appellant has not been given, as a matter of law, the things required by s 501CA(3)(a) or the invitation required by s 501CA(3)(b).
164 Accordingly, for the reasons identified above, the orders of the primary judge are to be set aside and a writ of mandamus issue requiring those things required of s 501CA(3) to be done, according to law.
I certify that the preceding one-hundred and sixty-four (164) numbered paragraph are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. |
Dated: 16 December 2019
REASONS FOR JUDGMENT
RARES J:
165 Greenwood J has set out in his reasons the facts and relevant legislative provisions. I agree generally with his Honour’s reasons and the orders he proposes for the following reasons.
Did the Federal Circuit Court have jurisdiction?
166 The Federal Circuit Court had jurisdiction in the matter. That is because the appellant sought a writ of mandamus in relation to the conduct of the Minister or an officer of his Department under s 501CA(3) of the Migration Act 1958 (Cth) to require the Minister to give the appellant a written notice, particulars and an invitation in the manner that the section specified preparatory to the Minister making a decision under s 501CA(4). That conduct consisted of the failure of the Minister or officer to give the appellant an invitation in accordance with s 501CA(3)(b).
167 French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ held in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 203 [66] that the conduct of an international treaties obligations assessment (ITOA) by an officer of the Department, which (unlike the situation under s 501CA(3)) was a non-statutory process, was nonetheless “conduct under the Act preparatory to the making of a substantive decision” by the Minister who would later consider using his non-compellable powers under the Act within the meaning of s 474(3)(h).
168 Here, the process of carrying out the obligations that s 501CA(3) imposed, following the making of the decision under s 501(3A), necessarily involved the Minister or an officer of his Department, being an officer of the Commonwealth, within the meaning of s 75(v) of the Constitution. The valid or invalid performance of the function or duty under s 501CA(3) complained of was conduct preparatory to the Minister making a decision under s 501CA(4). Just as the Minster could not have been compelled to make a decision after the completion of an ITOA in SZSSJ 259 CLR 180, so too, here, he may never have to make a decision, if after the steps mandated in s 501CA(3) have occurred validly, the person whose visa had been cancelled does not make representations in accordance with s 501CA(3)(b). Their Honours said in SZSSJ 259 CLR at 204 [70]-[71]:
Section 476(2)(d) does not exclude the jurisdiction of the Federal Circuit Court in a matter in which the relief sought is founded in a claim that an officer of the Department has failed to observe an implied limitation on his or her statutory power in holding an inquiry or conducting an investigation to inform the Minister as to the making of a substantive decision after the Minister has made a procedural decision.
Together, ss 474(7) and 476(2)(d) can be seen to implement a comprehensible legislative policy. A challenge to conduct undertaken by an officer of the Department under the Act and for the purpose of assisting the Minister’s consideration of the exercise of a non-compellable power can be heard and determined by the Federal Circuit Court. A challenge to a decision made by the Minister personally not to exercise a non-compellable power can only be heard and determined by this Court under s 75(v) of the Constitution.
(bold emphasis added)
169 Here, compliance with s 501CA(3) can only occur if the Minister or an officer of the Department carries out the steps in compliance with what the section mandates. Those steps are both preparatory and essential to, first, enabling a person in prison whose visa has been cancelled under s 501(3A) without any natural justice to seek revocation of the decision to cancel it and, secondly, the enlivening of the Minister’s power to act under s 501CA(4), if the person makes representations in accordance with a validly given invitation under s 501CA(3)(b).
170 The appellant sought a writ of mandamus to compel the Minister or an officer of his Department to perform his obligations under s 501CA(3) by engaging in conduct preparatory to, and for the purpose of, the Minister making a decision under s 501CA(4). That conduct was a “privative clause decision” within the meaning of s 474(3)(h) and thus, the appellant’s claim to compel the proper performance of the Minister’s or officer’s duty or function under s 501CA(3) by a writ of mandamus was within the jurisdiction of the Federal Circuit Court.
Did the Minister comply with s 501CA(3)?
171 I am of opinion that the invitation and the notice were not given in accordance with s 501CA(3). That is because s 501CA(3) is a particular section that applies only where the power being exercised under s 501(3A) has been enlivened and acted on, namely, in respect of a person who is in prison serving a sentence of imprisonment. That is why the particular form of giving notice in s 501CA(3)(a) is different to all of the other provisions in the Act (except s 501C(3)(a) which operates in a different context to s 501CA) by adding “in the circumstances”. A person in prison is not in the same “circumstances” as apply to a person given a notice of a cancellation of a visa who is in the community where such a person has access to the ordinary resources of persons at liberty there. And, similarly, regs 2.52 and 2.55 do not apply to giving a notice under s 501CA(3)(a) to persons in immigration detention, where access to resources and information are also different to those available in a prison operated by a State or Territory government.
172 The general provisions of ss 494A to 494C as to the manner in which the Minister may “give” documents under the Act do not apply to s 501CA because of the specific requirement in s 501CA(3)(a) that the notice be given “in the way that the Minister considers appropriate in the circumstances”. In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 (and see too: David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265 at 276 per Gummow J, with whom Brennan CJ, Dawson, Gaudron and McHugh JJ agreed at 269), Gavan Duffy CJ and Dixon J said:
When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.
173 A person in prison, moreover, has only the time in which the regulations allow for him or her to respond to an invitation to make representations in accordance with s 501CA(3)(b). Relevantly, reg 2.52(3) provides that such a response must be in English or with English translations. The 28 day time limit (that reg 2.52(2)(b) prescribes), in those circumstances, makes it essential that the invitation under s 501CA(3)(b) be intelligible, in fact, to the person to whom it is given, as opposed to merely satisfying a formula that invites the person only in the English language, regardless of his or her capacity, or ability to access from prison resources, such as interpreters, to enable him or her, to understand that form of invitation or the English language.
174 As Logan J posited in argument, were the same written notice (as that given to the appellant) given to a blind person in prison without access to translation or braille equipment or assistance, the document would comply in form, but not in substance, with the statutory obligation to give a notice and invitation under s 501CA(3). That is because such notice and invitation would not be intelligible to the person and thus, in substance, the notice would not be appropriate “in the circumstances”. The blind person would not be able to comprehend what he or she had been given or know that it included an invitation on a matter of significance to him or her.
175 The particular circumstances in which s 501CA operates specifically only in respect of a person in prison reinforce a construction that the Parliament intended that a notice and invitation under s 501CA(3) be in a form that is actually meaningful to its intended individual recipient, and that it be given after the Minister has engaged in active intellectual consideration about what will be “appropriate in the circumstances” so that the recipient be able to understand, immediately on its receipt, not only the notice but also the purpose of the invitation to make representations and that they must be made within 28 days. This is particularly so since the decision to revoke the visa under s 501(3A) is made without any requirement for the Minister to comply with natural justice or even to inform the visa holder that the cancellation of his or her visa is being considered prior to the decision being made.
176 The officer’s email that Greenwood J has set out at [7] simply required the prison authorities to give to the appellant a package consisting of 86 pages, being the mandatory cancellation notification package, together with the particular notification. The email emphasised only that it was important that the appellant be given the package and notification without delay because there was a limited time in which he could apply for the revocation of the cancellation of his visa. The email did not seek to ensure that the appellant would be in a position to understand what the documents that it asked be given to him, said, in particular about not only the cancellation of his visa but also the statutory invitation under s 501CA(3)(b) and the time limit of 28 days in which to make representations in English. Moreover, there was no evidence that the Minister was made aware any of the information in the case notes referred to in [111]-[112] in Greenwood J’s reasons.
The lack of delegation
177 The same person who made the revocation decision s 501(3A), as a delegate, sent the email. It was common ground that that person did not have, or act under, any delegation of power under s 501CA(3) or (4).
178 The Minister argued that the fulfilment of the steps in s 501CA(2) and (3) were simply “tasks” within the meaning of s 497(2) of the Act, being tasks that did not need to be performed personally by a delegate, but could be done by ordinary administrative officers.
179 However, the particular requirements of s 501CA(2) and (3) involve the Minister giving consideration to what needs to be done to satisfy and fulfil the duty under s 501CA(3). That duty extended beyond mere “tasks” that the Minister or his officers must perform simply in accordance with regulations.
180 The regulations do not tell the Minister what information is relevant and must be conveyed under s 501CA(2) and (3) or what the Minister considers, in relation to the person who is in prison and whose lawful present authority to be in the country has been revoked, will be a manner of giving him or her a notice which s 501CA(3)(a) requires be done in a way that is “appropriate in the circumstances”, and an invitation to make representations pursuant to s 501CA(3)(b). There is no regulation that addresses the giving of a notice under s 501CA(3)(a). No doubt that is because of its bespoke role as conveying a notice and invitation to the individual prisoner affected.
181 What the Minister does under s 501CA(3) must be effective, in the circumstances, to communicate to the imprisoned holder of the revoked visa notification of the decision and an invitation that he or she will have to make representations for its revocation within the 28 days and in a manner that will comply with all of the highly prescriptive requirements in the regulations.
182 The fact that the information package comprised over 80 pages of densely printed material and required the completion of very many answers to questions in English, all of which answers had to be either in English or translated into English within the 28 days suggests that this was no ordinary administrative procedure of a formal nature. That is why the Minister had to ensure that both the notice, and the invitation, under s 501CA(3), would be meaningful to the individual so that that person would understand the subject matter in each of the notice and invitation. A prisoner is a person deprived of civil rights and liberties. He or she has no right to seek out or obtain assistance, including competent interpreters, as or when he or she needs them, let alone to deal with the meaning of, or response to, the four page revocation notification and the 86 page package.
183 The Department’s letter of 3 January 2017 (set out at [107] of Greenwood J’s reasons) was inaccurate, indeed, incomprehensible, in identifying to the appellant the time within which he had to reply to the invitation to make representations. The letter stated that the representations must be made “within 28 days after you are taken to have received this notice” (emphasis added). As Greenwood J explains (at [102]-[106]), on the second last of the separate 86 page bundle that the illiterate appellant received on 4 January 2017, he was told only that he had to seek revocation “within the stated timeframe (28 days)” but nothing about when he was “taken to have received this notice”, that was dated 3 January 2017. The separation by over 80 pages, dealing with a mass of other material, of the two differently expressed time limits was calculated to cause any reader of the 86 pages to be confused as to when the deadline was.
184 It is unclear what date that material conveyed as to when the 28 day time limit begins or ends. Yet, reg 2.52(2)(b) provides, clearly, that the representations must be made “within 28 days after the person is given the notice and particulars of relevant information under paragraph 501CA(3)(a) of the Act”.
185 Any invitation under s 501CA(3)(b) must comply with the terms of that section, namely it must “invite the person to make representations…within the period…ascertained in accordance with the regulations”. In using the formulation, “within 28 days after you are taken to have received this notice”, the 3 January 2017 letter disregarded the terms of reg 2.52(2)(b). In my opinion, that also invalidated it. In DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at [59], Perram J, with whom Farrell J and I agreed (see at [1], [67]), said that, in an analogous situation, the question whether a notification of a time limit complied with the words of the Act, “necessarily devolves to an inquiry into whether that information was clearly conveyed” (emphasis added). The Full Court there held that the Minister’s failure to state clearly to the recipient the time within which an application for review must be made meant that time had not yet commenced to run (see at [62]).
186 I reject the Minister’s argument that because, on 1 June 2017, the appellant’s migration agent received a copy of the 3 January 2017 notice and invitation, this somehow reset the 28 day time period, as the Minister argued. The later provision of documents under a freedom of information request was not compliant with s 501CA(3). It could hardly be correct to characterise the response to a request for documents under a different statute as belated compliance with the important statutory process that s 501CA(3) mandated.
Remitter
187 The Minister argued that the matter should be remitted to the Federal Circuit Court because it should be able to make findings of fact. That argument is fallacious. This was a case on the documents. The affidavit of Helen Blaber was admissible because it related to the establishment of the ineffectuality of the invitation and the understanding of the appellant of what had happened. In those circumstances, the Full Court is in as good a position as the trial judge: Warren v Coombes (1979) 142 CLR 531; Fox v Percy (2003) 214 CLR 118 at 125-127 [22]-[25]. The Full Court’s duty under s 27 of the Federal Court of Australia Act 1976 (Cth) is to hear the appeal de novo and to draw its own inferences on the evidential materials before it and to determine the appeal. There is no suggestion that the material before us was any different to what was before the trial judge.
188 The appeal should be allowed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. |
Associate:
Dated: 16 December 2019
REASONS FOR JUDGMENT
LOGAN J:
189 EFX17 is the pseudonym given to the appellant, an Afghan citizen who arrived in Australia by boat in October 2009. On 16 December 2009, a delegate of the respondent, the Minister for Immigration and Border Protection (Minister), granted the appellant a Class XA Subclass 866 Protection Visa (the visa) under the Migration Act 1958 (Cth) (the Act).
190 The appellant’s native language is Hazaragi. He does speak broken English but his ability to read or write in English is limited at best. His limited fluency and literacy in English has meant, for example, that his communications with his lawyers have had to be conducted via an interpreter. The appellant has also been diagnosed as having suffered from a schizophrenic illness, which has been treated with regular, anti-psychotic medication.
191 On 19 December 2016, the appellant was convicted, upon his plea of guilty, of committing acts intended to cause grievous bodily harm, contrary to s 317 of the Criminal Code 1899 (Qld). He was sentenced to a term of 7 years’ imprisonment.
192 Because the term of imprisonment imposed on the appellant was of 12 months or more, that, by definition (s 501(7)(c) of the Act), meant that the appellant had a “substantial criminal record”. Also by definition (s 501(6)(a) of the Act), that meant that the appellant did not pass the character test. In the circumstances, the Act imposed an obligation on the Minister to cancel the appellant’s visa if the Minister were satisfied that he did not pass the character test s 501(3A)(i). On 3 January 2017, a delegate of the Minister, being satisfied that the appellant did not pass the character test on the basis of the term of imprisonment to which he had been sentenced, cancelled his visa (cancellation decision). The appellant has never questioned that there existed a basis upon which the Minister’s delegate might reasonably have been satisfied that he did not pass the character test.
193 Having made the cancellation decision, termed the “original decision” in s 501CA(3) of the Act (by virtue of s 501CA(1)), the Minister came under the obligation specified thus in that subsection:
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person 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.
The term “relevant information” is defined by s 501CA(2):
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
194 Also on 3 January 2017, the Minister’s delegate sent an email to a contact email address within the Queensland government’s Department of Corrective Services (DCS), copied to a contact email address within the Queensland Parole Board, requesting that an enclosed letter to the appellant be delivered to him forthwith and a signed receipt for it be obtained from him and returned to the delegate. The enclosed letter was written in English. It notified the cancellation of the visa, the reason for the cancellation, and invited the appellant to make representations, within the prescribed time, in respect of the revocation of the cancellation decision. The appellant accepts that, if permissibly written in English, the letter met all of the requirements specified in s 501CA(3) of the Act.
195 As at 4 January 2017, the appellant was incarcerated at the Arthur Gorrie Correctional Centre in Ipswich, Queensland. It was there that, on 4 January 2017 and as a sequel to the request made of DCS the preceding day, an officer of DCS handed to the appellant a copy of the Minister’s delegate’s letter and obtained from him a signed receipt for that letter.
196 Pursuant to an extension of time granted by that court, the appellant applied to the Federal Circuit Court of Australia (Federal Circuit Court) for a declaration that the delivery of the letter to him on 4 January 2017 did not comply with s 501CA(3) of the Act and a writ of mandamus requiring the Minister or his delegate to comply with those requirements. That application was dismissed by the Federal Circuit Court on 7 November 2018: EFX17 v Minister for Immigration [2018] FCCA 3179.
197 The appellant has appealed to this Court against the order of dismissal. The grounds of appeal are as follows:
Construction of section 501CA(3)
1. The primary judge erred in determining that 'the circumstances' referred to in section 501CA(3)(a) of the Migration Act 1958 (Cth) (Migration Act) did not include characteristics and individual circumstances of the person to whom the written notice and particulars referred to in subsections (i) and (ii) are required to be given that may affect their capacity to receive, read, understand and make representations in response to that notice and those particulars (capacity matters), such as:
(a) their literacy;
(b) their capacity to understand English;
(c) their mental capacity and health; and
(d) if they are in custody, the facilities available to them in custody to enable them to understand the notice and particulars.
2. The primary judge erred in determining that the requirements in section 501CA(3)(a) of the Migration Act to give 'a written notice that sets out the original decision' and 'particulars of the relevant information' did not require the Minister to have regard to the capacity matters referred to in paragraph 1 above in formulating the substance of that notice and those particulars.
3. The primary judge erred in determining that the requirement to ‘invite the person to make representations to the Minister’ in section 501CA(3)(b) of the Migration Act did not require the Minister to have regard to the capacity matters referred to in paragraph 1 above in:
(a) formulating the substance of the invitation; and
(b) determining how the invitation was to be given.
4. Having regard to the matters in paragraphs 1 to 3 above, there was no evidence on which it was open to the primary judge to find that the Minister:
(a) gave the written notice and particulars referred to in section 501CA(3)(a) in the way the Minister considered appropriate in the circumstances; or
(b) gave the invitation referred to in section 501CA(3)(b).
Application of the notification provisions
5. The primary judge erred in determining that the permission in section 494A(1) of the Migration Act for the Minister to 'give the document to the person by any method that he or she considers appropriate':
(a) did not require the Minister to formulate and give the notice, particulars and invitation referred to in section 501CA(3) in accordance with paragraphs 1 to 3 above; or
(b) otherwise relieved the Minister of his obligation to give the notice, particulars and invitation referred to in section 501CA(3) in accordance with paragraphs 1 to 3 above.
6. There was no evidence on which it was open to the primary judge to find:
(a) that the documents purporting to comprise the notice, particulars and information referred to in section 501CA(3) were handed to the Applicant by an ‘authorised officer’ within the meaning of section 5 of the Migration Act;
(b) accordingly, that the documents were handed to the Applicant in accordance with section 494B(2) of the Migration Act.
7. The primary judge erred in determining that section 494C(7) of the Migration Act:
(a) was inconsistent with section 9 of the Electronic Transactions Act 1999 (Cth) (Electronic Transactions Act);
(b) applied in a situation in which:
(i) the Minister had not obtained a person's consent to receiving information by way of electronic communication in accordance with section 9 of the Electronic Transactions Act; or
(ii) documents were not handed to a person by an 'authorised officer'; or
(c) otherwise relieved the Minister of his obligation to give the notice, particulars and invitation referred to in section 501CA(3) in accordance with paragraphs 1 to 3 above.
8. The primary judge erred in determining that section 501G(3) of the Migration Act applied to the notice referred to in section 501CA(3).
Impermissible delegation
9. The primary judge erred determining that, by the operation of section 497 of the Migration Act or otherwise, giving the notice, particulars and invitation referred to in section 501CA(3) by reference to the capacity matters referred to in paragraph 1 above was:
(a) an ‘administrative’ or ‘clerical’ act; or
(b) otherwise could be performed by a person who was not the Minister or a delegate authorised by the Minister in accordance with section 496 of the Migration Act.
198 The Minister has also raised by notice of contention a further issue, which is whether the Federal Circuit Court had jurisdiction under s 476 of the Act to entertain the appellant’s judicial review application at all.
199 Each of these issues was raised in the Federal Circuit Court.
200 It is convenient first to consider the question of jurisdiction.
Jurisdiction
201 In summary, subject to that section, s 476(1) of the Act confers on the Federal Circuit Court the same original jurisdiction in relation to “migration decisions” as the High Court has under s 75(v) of the Constitution. The term “migration decision” is defined by s 5 of the Act to include a “privative clause decision”. Materially, s 474 purports to render a “privative clause decision” final and conclusive and not amenable to challenge by constitutional or equivalent writ in any court.
202 Dealing with the Minister’s jurisdictional objection requires that greater detail be given in respect of the Act’s conferral of jurisdiction on the Federal Circuit Court.
203 Section 476 provides:
Jurisdiction of the Federal Circuit Court
(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.
(2) The Federal Circuit Court has no jurisdiction in relation to the following decisions:
(a) a primary decision;
(b) a privative clause decision, or purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500;
(c) a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA;
(d) a privative clause decision or purported privative clause decision mentioned in subsection 474(7).
(3) Nothing in this section affects any jurisdiction the Federal Circuit Court may have in relation to non-privative clause decisions under section 8 of the Administrative Decisions (Judicial Review) Act 1977 or section 44AA of the Administrative Appeals Tribunal Act 1975.
(4) In this section:
primary decision means a privative clause decision or purported privative clause decision:
(a) that is reviewable under Part 5 or 7 or section 500 (whether or not it has been reviewed); or
(b) that would have been so reviewable if an application for such review had been made within a specified period; or
(c) that has been, or may be, referred for review under Part 7AA (whether or not it has been reviewed).
204 For the definition of the term “privative clause decision”, s 5 directs attention to s 474. That section provides, in part:
Decisions under Act are final
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
(3) A reference in this section to a decision includes a reference to the following:
(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;
(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);
(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;
(d) imposing, or refusing to remove, a condition or restriction;
(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article;
(g) doing or refusing to do any other act or thing;
(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;
(j) a failure or refusal to make a decision.
(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision: ...
205 The Minister submitted that the giving of the written notice and the invitation to the appellant entailed no decision at all, much less a decision having the quality of finality to which Mason CJ referred in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (Bond) at 335 - 337. Nor, he submitted, could it even be characterised as conduct preparatory to the making of a revocation decision, as there could be no certainty that the appellant would seek to have the cancellation decision revoked. The Minister further submitted that the Full Court’s judgment in SZQDZ v Minister for Immigration and Citizenship (2012) 200 FCR 207 (SZQDZ) at [40] and [43] stood against any expansive reading of “conduct” in s 474(2)(h). To adopt any other view as to the jurisdiction conferred on the Federal Circuit Court would entail the prospect of any number of procedural actions by the Minister of being susceptible to judicial review proceedings in that court.
206 Since the appeal was argued, a case directly on point, to which the Minister referred in submissions as then being the subject of a reserved judgment, has been decided in the original jurisdiction by Flick J: BYN18 v Minister for Home Affairs [2019] FCA 1033 (BYN18). His Honour concluded that a notification and invitation, given to the applicant in that case, of the decision to cancel his visa, as opposed to the decision to cancel the visa itself, were not a “decision” for the purposes of s 476 and thus were not a “decision” susceptible of review by the Federal Circuit Court or of the granting under s 477 of the Act of any required extension of time within which to apply for review. The essence of his Honour’s reasoning is to be found in this excerpt of his judgment (at [22] - [23]):
22. … Although it is the particular statutory context under consideration in any given case which dictates whether a “notice” may constitute a “decision”, it may be noted that in McLachlan v Australian Securities Commission (1998) 52 ALD 298 at 304 Finn J concluded that a decision to issue a notice of hearing under s 57(2) of the Australian Securities and Investments Commissions Act 1989 (Cth) was not one which could “of itself result in any determination of rights or liabilities or of any substantive issue” – it merely put in train a process which could lead to a decision which had consequences of that kind. This decision was affirmed on appeal: McLachlan v Australian Securities and Investments Commission [1999] FCA 244, (1999) 85 FCR 286. Similarly, it was the making of the decision under s 501(3A) which was the substantive decision impacting upon the Applicant and the giving of the notice under s 501CA(3) was not itself a “decision” but merely a step which put in train the process of inviting a further representation from the Applicant so that the Minister could thereafter make a separate substantive decision under s 501CA(4) as to whether to revoke the visa cancellation. For present purposes the analogy is sufficient.
23. The Applicant’s submission that the definition, in s 474, of a privative clause decision (as including “doing or refusing to do any other act or thing”: s 474(3)(g)) captured the notification provided on 4 April 2017 such that it was a migration decision reviewable by the primary Judge is therefore rejected.
207 For his part, the learned primary judge, who necessarily did not have the benefit of BYN18, considered (at [33] - [34]) that the Minister’s choice as to the “appropriate” means of giving a notice under s 501CA(3)(a) of the Act constituted a “decision” amenable to judicial review in the Federal Circuit Court and that, in any event, “the actual giving of the notice in the manner considered appropriate was the doing of an act within the meaning of s.474(3)(g) of the Act”.
208 The observation made by Flick J in BYN18 as to the importance of statutory context is one with which I wholeheartedly agree. As it happens, however, it is because of the statutory context that I am respectfully unable to agree with Flick J or the Minister that the Federal Circuit Court lacked jurisdiction.
209 There is a superficial similarity between s 474(3) of the Act and s 3(2) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), which provides:
(2) In this Act, a reference to the making of a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing;
and a reference to a failure to make a decision shall be construed accordingly.
210 Naturally enough, that superficial similarity makes it tempting to regard the subject of what constitutes a “decision” for the purposes of s 474 and therefore s 476 of the Act as wholly concluded by what was said in Bond about what constituted a “decision” for the purposes of the ADJR Act.
211 On closer examination, it can be seen that s 474 of the Act:
(a) by s 474(3)(h), conflates “conduct” preparatory to the making of a decision with a “decision”, whereas the ADJR Act, by s 6, makes separate provision in respect of conduct engaged in for the purpose of making a decision to which that Act applies;
(b) supplies not a definition of what constitutes the making of a decision but of what constitutes a “decision”.
212 Thus, under the ADJR Act, the doing of an act can constitute the making of a decision, but the decision must nonetheless be one which is a “decision to which this Act applies” in terms of s 3 of that Act and thus be attended with all of the qualities described in Bond. That reasoning was applied in SZQDZ, at [40] so as to hold that the decision to which s 474(3) of the Act referred nonetheless had to have the quality of a decision to which s 474(2) referred and that this, in turn, meant that it had to be a “decision to which this Act applies”, to which the reasoning in Bond was applicable.
213 In contrast, and as French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ observed, at [68], in their joint judgment in Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 (SZSSJ), the purpose of s 474(3) is “to spell out an extended meaning of the generic term “decision” for the purpose of the operative expression “privative clause decision””. When this purpose and the central place of “privative clause decision” in the definition of “migration decision” is understood, to construe s 474 as the Minister contends and BYN18 upholds is necessarily to narrow the meaning of “privative clause decision” and thus “migration decision”. In turn, that approach to construction necessarily not only narrows the jurisdiction conferred on the Federal Circuit Court by, and the related limitation of jurisdiction in, s 476 but also narrows the limitation found in s 476A of the Act in respect of the original jurisdiction of this Court. That s 476A limitation is, subject to exceptions expressed in that section, also in relation to “migration decisions”. Thus, the end result of such an approach to construction is, with respect, distinctly odd. The result of such a narrowing of the jurisdiction of the Federal Circuit Court would be that a gap would emerge in a statutory scheme the evident purpose of which, subject to singular exceptions, is:
(a) to relieve the High Court of Australia from the burden of the exercise of its irreducible minimum, original jurisdiction under s 75(v) of the Constitution by conferring a like jurisdiction on the Federal Circuit Court in respect of “migration decisions”;
(b) allowing this Court to exercise, in the usual way, an intermediate appellate jurisdiction in respect of judgments of the Federal Circuit Court in non-family law matters, in this instance, judgments in respect of “migration decisions”, thereby relieving the High Court of Australia from exercising an appellate jurisdiction in respect of judgments given in that court’s original jurisdiction under s 75(v).
214 A related, evident purpose of Parliament was, within the limits of constitutional legislative competence, to make the reach of “privative clause decision” as comprehensive as possible. The limits of constitutional legislative competence are found in Parliament’s inability to render immune from challenge by constitutional writ, declaration or injunction under s 75(v) of the Constitution in the High Court’s original jurisdiction any decision, failure to make a decision, act or failure to act by an officer of the Commonwealth (into which class the Minister and his departmental officers fall) which involve either a failure to exercise jurisdiction or an excess of the jurisdiction conferred by or under an Act: Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476, at [76] - [77]. The appellant put the correct position succinctly in his submissions in this way: “It would defeat the evident purpose of section 476 if the appellant had to approach the High Court directly for that relief.”
215 In EKU17 v Minister for Immigration and Border Protection [2019] FCA 782, Davies J, in the exercise of original jurisdiction, explained, at [19] - [22], how the reasoning in SZSSJ was inconsistent with SZQDZ. I respectfully agree with and adopt without repeating, her Honour’s analysis and her consequential conclusion, at [23], that SZQDZ must be taken to have been overruled by implication by SZSSJ. Her Honour’s analysis provides additional reasons why I am unable to accept that the Federal Circuit Court lacked jurisdiction.
216 Viewed through the prism of the ADJR Act and Bond, it is very difficult indeed to conceive of the giving of a notice and the making of an invitation as a “decision”. But each is, on any view, the doing of an act. Viewed through the relevant prism namely, s 474(2)(g) of the Act, these actions were, by definition, “decisions”. Thus, for the reasons given, the learned primary judge correctly concluded that the Federal Circuit Court had jurisdiction to hear and determine the appellant’s application. It follows, for these same reasons, that, with respect, I am unable to regard BYN18 as correctly decided.
Construction of section 501CA(3)
217 The learned primary judge considered (at [38(c)]), that all that s 501CA(3)(a) required was that the Minister consider the appropriate way in which the written notice ought to be given to the person whose visa had been cancelled in the circumstances in which the that person was placed at the likely time of the giving and receipt of the notice. The Minister’s choice was, in his Honour’s view, method of giving based only with no requirement to consider issues relating to the capacity of the person. His Honour adopted a like view of the s 501CA(3)(b) invitation requirement.
218 The appellant submitted that the evident purpose of s 501CA(3) is “to provide a form of natural justice in relation to what is otherwise a mandatory and irrevocable cancellation decision made without input from the person who is subject to it”.
219 I readily accept that a natural justice purpose attends s 501CA(3), although I would express the purpose of the provision a little differently. It is to offer a person affected by a cancellation decision which the Minister must make if he reasonably has the relevant satisfaction an opportunity to persuade the Minister to exercise a discretion to revoke the cancellation. For that reason, and as Kiefel CJ, Bell, Keane and Edelman JJ put it in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333, at [6], by reference to s 501CA(3)(b) of the Act, “The Minister is obliged to invite the person whose visa is cancelled to make representations about the revocation of the original decision to cancel”.
220 The next premise in the appellant’s argument was that the reference to “the circumstances” in s 501CA(3)(a) should be construed as requiring the Minister at least “to consider … the circumstances of the recipient known to or reasonably able to be identified by the Minister that may affect the recipient’s capacity to receive, read, understand and make representations in response to that material”. Subjects such as literacy in English and mental incapacity were said to be subjects for such Ministerial consideration. Like sentiments were said to attend the invitation which, by s 501CA(3)(b), the Minister was obliged to give. Otherwise, so the submission went, the giving of the notice and its correlative invitation to make submissions would be an “a hollow shell or an empty gesture”: Mazhar v Minister for Immigration and Multicultural Affairs (2000) 183 ALR 188 at [31].
221 It was then submitted by the appellant that there was no evidence of the making of any inquiries on these subjects by the Minister or his delegate prior to the giving of the notice. As to this and questions of the correct statutory construction apart, if the Minister or his delegate either new or ought to have known of the appellant’s illiteracy in English or mental condition, it was for the appellant to lead evidence of this in the Federal Circuit Court. The onus of proof lay on the appellant in the Federal Circuit Court.
222 On his promoted construction of s 501CA(3)(a) of the Act, the appellant at least had to prove that the Minister or his delegate had constructive knowledge, in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (Peko-Wallsend), at 45, of these personal qualities of the appellant. One might speculate, given the nature of the visa cancelled, that at least in respect of literacy in English and as at the time of the granting of that visa, there just might, somewhere on a file in the Minister’s department, be some notation about this. But speculation is not sufficient. It was for the appellant to obtain evidence of this by freedom of information application or discovery and then to introduce this into evidence in the Federal Circuit Court. There was no such evidence which was so introduced. The absence of any such evidence lends an academic quality to the challenge which the appellant seeks to mount in relation to the construction of s 501CA(3)(a) of the Act.
223 The Minister’s submission was that s 501CA(3)(a) of the Act was concerned just with the “way”, as in method, of giving the required notice. There being no particular way specified in s 501CA(3)(a) of the Act, other than that Ministerially considered appropriate, the Minister was, so the submission went, permitted, but not obliged, to adopt one of the methods for which s 494A of the Act or the Migration Regulations 1994 (Cth) (Regulations), in particular regs 2.55(1)(a) - (c), provided. I agree that these provisions in the Regulations, on their face, are respectively applicable to notifying of the cancellation decision and to the invitation to apply for the revocation of that decision (because the invitation would, in terms of reg 2.55(1)(c) of the Regulations, be a document “relating to the revocation of the cancellation of a visa under the Act”).
224 Correctly in my view, the Minister identified that, at the heart of the appellant’s submission about s 501CA(3), was a need for the acceptance of a proposition that, as a matter of necessary implication, for nothing was expressly specified in the subsection, s 501CA(3) required that the Minister consider capacity issues in relation both to the giving of the notice and the extending of the invitation. I understood the reference to necessary implication to take up the well-known observations of Mason J in Peko-Wallsend, at 39 - 40, as to what constituted a “relevant consideration”.
225 Under the general law, illiteracy in English can be a relevant consideration in the resolution of a variety of controversies, both civil and criminal.
226 For example, a nominally false answer, fraudulently written on a pre-printed form of contract by an agent of an insurance company, does not enable that company to refuse to honour a policy of insurance on the basis of a warranty given by an illiterate insured as to the truth of statements made on the application for the policy: Maye v Colonial Mutual Life Assurance Society Ltd (1924) 35 CLR 14. If one party to a transaction takes advantage of the illiteracy of the other for monetary or other advantage, that is a species of conduct which can give rise to a claim for relief for unconscionable conduct: Johnson v Buttress (1936) 56 CLR 113; Sir Anthony Mason, “The Impact of Equitable Doctrine on the Law of Contract” (1998) 27 Anglo-American Law Review 1 at 7 - 8.
227 In the criminal law, an accused’s illiteracy in English can be a basis for the rejection of the tender of a record of an interview between investigating police and the accused: R v Anunga (1976) 11 ALR 412.
228 However, even at general law, there are limits as to the relevance of illiteracy in terms of the offering of an opportunity to be heard. Thus, in Sinanovic v R (1998) 72 ALJR 1050, Kirby J found no basis for leave to issue a motion to seek revocation of a refusal to grant special leave to appeal to an illiterate prisoner who had received a copy of the transcript of his trial only one week before the hearing of the special leave application. That was because there was no right either under the Constitution or the general law to legal representation on the hearing of the appeal.
229 In the analogous statutory context of Nauruan refugee law, knowledge on the part of a merits review tribunal of an applicant’s illiteracy and limited understanding of English was one factor, amongst others, which informed a conclusion by the High Court, in the exercise of its then Nauruan appellate jurisdiction, that the tribunal’s failure to adjourn a hearing, an invitation to attend which had been given to that applicant, was unreasonable: TTY167 v Republic of Nauru (2018) 93 ALJR 111 (TTY167).
230 General law recognition that, in a variety of contexts, illiteracy may place a person in a position of particular and peculiar disadvantage requiring a particular response in law may perhaps have informed the appellant’s challenge to the construction adopted by the learned primary judge. But the present case must be resolved by reference to the text of s 501CA(3) of the Act, read in context and having regard to its evident purpose, not under the general law. That is not to say that the meaning to give the text of the Act or the determination of the reasonableness of a decision might not admit of being informed by the general law recognition just mentioned.
231 As to textual considerations, a starting, and perhaps also finishing, point is that the text of s 501CA(3) does not distinguish between classes of holders of cancelled visas. On its face, the subsection applies indifferently to all persons subject to a cancellation decision, some of whom may be literate in English or of full mental capacity, some of whom may not be and some of whom may be of varying intermediate degrees of literacy and intellect. And the Minister or a delegate may or may not know of the nature and extent of any illiteracy in English at the time when the visa cancellation decision is made.
232 These considerations provoke the thought that, at least in respect of the giving of the notice under s 501CA(3)(a) of the Act, if not also in respect of the extension of an invitation under s 501CA(3)(b), the point may be resolved against the appellant by WACB v Minister for Immigration, Citizenship and Multicultural Affairs (2004) 79 ALJR 94 (WACB).
233 At issue in WACB was whether, as the Act then stood, a proceeding challenging a Refugee Review Tribunal decision had been instituted in this Court within time. That, in turn, depended upon whether and, if so, when the appellant had been “notified” that tribunal’s decision. In their joint judgment, at [43], Gleeson CJ, McHugh, Gummow and Heydon JJ)stated:
[43] The appellant also submitted that the fact that he had little or no education and was illiterate was also relevant to the construction of s 478(1)(b). He contended that, whilst what was required was delivery of the written statement under s 430(1), it was also necessary that it be translated into a language understandable to the appellant (either orally or in writing). As discussed, s 478 is construed by reference to the provisions of the Act. The Act provides a complete answer. The Act does not distinguish between notification given to a person in the position of the appellant and any other visa applicant. Nor does it distinguish between applicants with differing levels of education or literacy.
[Emphasis added]
Strictly, this statement was obiter, because the appeal was allowed on the basis that, as the Act then stood, physical delivery was necessary and this had not occurred, such that time had not run. But obiter statements in a joint judgment of four High Court judges are nonetheless binding upon courts lower in the hierarchy: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, and [134] and [158].
234 As a matter of construction, “give” in s 501CA(3)(a) is qualified by “the way” and, in turn, “the way” is qualified by “the Minister considers appropriate in the circumstances”. I accept the Minister’s submission that, because s 501CA does not specify that the notice and relevant information must be given in a particular way, for example under s 494B of the Act, the Minister was, for example, able permissibly to adopt a method specified in or under s 494A (which would include any method specifically prescribed in the Regulations): s 494A(1) of the Act. “Way” in s 501CA(3)(a) permissibly embraces the “methods” specified in or under s 494A, if the Minister considers one of these appropriate.
235 The import of “considers” is that the choice of the way of giving the notice is for the Minister. That does not mean that his choice is unexaminable on judicial review: Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297, at 303; Buck v Bavone (1976) 135 CLR 110, at 118-119.
236 A “considers appropriate” qualification was not present in the provision considered in WACB. It may therefore be arguable that, if the Minister knew, actually or constructively, at the time of choosing the way of giving that the person concerned was an infant, was not of mental capacity, was illiterate or was blind and sent the notice directly to that person, as opposed to a parent, guardian or carer, his choice of way might be amenable to judicial review on the basis of unreasonableness, or failure to take into account such a circumstance. The appellant contended as much. The difficulty with confining the focus of s 501CA(3) just to a choice of means or “way”, isolated from the personal circumstances of the person whose visa has been cancelled, is that, in context, there is no reason to read down “the circumstances” as excluding those of the person whose visa has been cancelled and every reason to read that expression as including but not limited to that person’s circumstances.
237 However, no concluded view need be reached on these subjects, because there was no evidence that the Minister either knew or ought to have known of the appellant’s particular literacy or mental capacity circumstances.
238 In this case and subject to the appellant’s “delegation” submission, the handing of the notice and relevant information to the appellant by a DCS officer, at the request of the Minister’s delegate was, permissibly, a “way” of giving the appellant the notice and the relevant information, such is the breadth of choice given to the Minister by s 501CA(3)(a). Further, there is no doubt on the evidence that the documents concerned were “given”, even if that required receipt. The documents were hand delivered and the appellant signed for them.
239 The learned primary judge adopted a similar approach to the invitation requirement found in s 501CA(3)(b) as he had to the notification requirement found in s 501CA(3)(a) of the Act. The personal characteristics of the appellant were not relevant in his Honour’s view. That view was informed by an apprehension as to difficulties in public administration which would attend any need expressly to advert to the person’s particular circumstances.
240 As to the s 501CA(3)(b) invitation requirement, the Minister embraced the approach to construction of the primary judge. Such an approach would be consistent with that adopted in WACB in relation to the meaning of “giving”, but that case had nothing to say about the context and purpose of the extending of an invitation.
241 The appellant relied, by analogy, on the statement made by the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (SCAR), at 561, [37], in relation to the tribunal hearing invitation requirement in s 425 of the Act, that, it imposes an “objective requirement” on the Tribunal, as a precondition to the valid exercise of its jurisdiction, to extend a “real and meaningful” invitation to an applicant to attend the Tribunal’s hearing”. The appellant submitted, that, as a consequence of his personal circumstances, the invitation extended to him had not been “objectively meaningful” such that there was a compliance failure which involved a jurisdictional error.
242 There is no doubt that the extending of the invitation under s 501CA(3)(b) serves an important procedural fairness end. Upon cancellation of a non-citizen’s visa, that person becomes an unlawful non-citizen (s 13 and s 14 of the Act) liable to immigration detention (s 189 of the Act) pending deportation (s 198 of the Act). So the right conferred by the invitation to make representations under s 501CA(4) to the Minister to exercise his discretion to revoke the cancellation is a valuable one, touching not just on personal liberty but on an ability to remain in Australia at all. An invitation under s 425 of the Act to attend an Administrative Appeals Tribunal hearing and there to make submissions and lead evidence to the end of persuading the Tribunal to grant a visa is a similarly valuable right. So the analogy prayed in aid by the appellant is not misplaced.
243 The difficulty for the appellant is that pursuing this analogy beyond SCAR, takes one to Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 (Li). Li was also cited by the appellant but without appreciation of a critical difference between what was said in that case and what had earlier been said in SCAR. The relevant passage in Li is in the joint judgment of Hayne, Kiefel and Bell JJ where, at [61], their Honours observed of s 425’s analogue, s 360:
Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case. Scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend would not fulfil the duty imposed by s 360(1). The invitation would be an empty gesture and any decision made following the hearing would be liable to be set aside. Not only would the conduct of the Tribunal, judged by the standard set by s 357A(3), be regarded as unfair, but, relevantly, other consequences would follow because the action of the Tribunal would also amount to a failure or refusal to comply with a statutory duty in the conduct of its review. The decision could not stand and the Tribunal would be required to consider it afresh after complying with that duty.
[Emphasis added; footnote references omitted]
244 The emphasised qualification, “to the Tribunal’s knowledge” accords with a consideration regarded in TTY167 as relevant to a conclusion of unreasonableness.
245 As with the giving of notification in WACB, the invitation to make representations requirement applies indifferently across a range of persons whose visa has been cancelled, admitting of an infinite variety of literacy and comprehension capacities. So it is difficult, in light of WACB, to see why, at least in the absence of knowledge, an invitation need be given other than in English and by a means permitted by the Act. But construing s 501CA(3)(b) so as to require that the Minister, where he does know, either actually or constructively, of circumstances which would render a usual form of invitation to make representations neither real or meaningful, to tailor an invitation accordingly offers a way of reconciling what was said in WACB in relation to the giving of notice with the observations made in Li and TTY167.
246 In my view, in the absence of such knowledge, the Minister is under no obligation to take account of literacy or other comprehension capacity issues. The public administration consideration to which the learned primary judge referred is not irrelevant to this conclusion. However, if such knowledge is present, the administrative task of inviting the person whose visa has been cancelled may in the circumstances be unreasonable or, put another way but to no different end, be neither real nor meaningful. I cannot, with all respect, regard SCAR as correctly decided in light of WACB, Li and TTY167. That is so whatever may otherwise have been the position prior to these cases: qv Minister for Immigration and Multicultural Affairs v SZFDE (2006) 154 FCR 365 at [94] per French J, at [134] per Allsop J and at [212] per Graham J. It is not sufficient that, objectively, the invitation can be seen to have been neither real nor meaningful. The appellant was required to prove that the Minister’s delegate either knew or, constructively knew, of his illiteracy and mental health condition. This he did not do.
The Electronic Transactions Act 1999 (Cth)
247 Seemingly on the footing that the Minister’s delegate’s emailing of the notification and invitation to the generic DCS email address were the relevant acts, the appellant submitted that, in the absence of his consent to this particular means of communication, and none had been given to the Minister, it was not effective, having regard to s 9(1)(d) and s 9(2)(d) of the Electronic Transactions Act 1999 (Cth) (ETA).
248 The text of these provisions is reproduced in the judgment of the learned primary judge. His Honour (at [43]) regarded the ETA point as “otiose”, given that both the notification and invitation had been handed to the appellant after having been printed out from the email. I agree. In these circumstances, it is neither necessary nor desirable to consider what might have been the interaction between the Act and Regulations and the ETA if there had been no physical delivery of the notification and invitation.
249 That the notification and invitation were physically delivered not by the Minister’s delegate or by any officer of the Commonwealth in the department for that matter highlights the importance of the appellant’s submissions regarding the absence of “delegation” by the Minister to the person who sent the notice and invitation to the appellant, or to the person who physically delivered them to him.
The absence of delegation challenge
250 The appellant submitted that the giving of a s 501CA(3) notice and invitation were not mere administrative or clerical tasks within the meaning of s 497 of the Act. Accordingly, it was submitted that the physical delivery of them to the appellant by a DCS officer, even at the request of the Minister’s delegate, was ineffective.
251 Section 497 of the Act provides:
Delegate not required to perform certain administrative tasks
(1) If the Minister delegates the power to grant or refuse to grant visas, the delegation does not require the delegate personally to perform any task in connection with the grant or refusal, except the taking of a decision in each case whether or not a visa should be granted.
(2) If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.
(3) Nothing in subsection (1) or (2) shall be taken to imply that:
(a) a person on whom a power is conferred by or under this or any other Act; or
(b) a delegate of such a person;
is required personally to perform all administrative and clerical tasks connected with the exercise of the power.
252 The learned primary judge (at [38]) regarded s 497 of the Act as an answer to the appellant’s challenge to the lawfulness of the means by which the appellant had been given the notice and invitation. In this regard also, I agree with his Honour.
253 As the learned primary judge appreciated, a contrary view, with the correctness of which he differed, was expressed by Judge Manousaridis in Aciek v Minister for Immigration and Border Protection (2017) 327 FLR 412 (Aciek). In Aciek, it was held that the tasks prescribed by s 501CA(3) of the Act were properly characterised as a “power” of the Minister, delegable in accordance with s 496 but were not tasks “in connection with the cancellation” of a visa as described in s 497.
254 In my respectful view, there is no power found in s 501CA(3) of the Act. Rather, there is, in s 501CA(3)(a), a statutory requirement for administrative consideration by the Minister or the delegate of the appropriate way, in the circumstances, of giving notice of the visa cancellation decision. Once that consideration has occurred and an appropriate way identified, its execution is nothing other than an administrative task in the giving of notice of visa cancellation.
255 As to the giving of an invitation under s 501CA(3)(b), that it is important and a matter of obligation I have already accepted, but these features do not convert what is found in that subsection into a statutory power. The giving of the invitation is correctly characterised as a task arising under s 501CA(3)(b). Further, like the giving of the notice of cancellation, the giving of the invitation to make representations is, in terms of s 497(2) of the Act, a task in connection with the cancellation. That is the natural meaning to give to the language of s 497(2) of the Act.
256 Further, as the learned primary judge opined (at [38(r)]), “There are innumerable circumstances which can be envisaged as requiring innovative and novel ways for the giving of a s. 501CA(3)(a) notice to an Applicant.” The same is true of a s 501CA(3)(b) invitation.
257 Section 501CA is only applicable to a situation where the cancellation power has been exercised pursuant to s 501(3A) of the Act: s 501CA(1). One of the preconditions to the exercise of that cancellation power is that the person concerned “is serving a sentence of imprisonment, on a full-time basis in a custodial institution” (s 501(3A)(b)) of the Act in respect of an offence against Commonwealth, State or Territory law. Thus, in context and necessarily, both the giving of the notice and the invitation will be to a person who is incarcerated in a penal institution.
258 As to those imprisoned in respect of offences against Commonwealth laws, s 501CA(3) of the Act has been enacted against the background of the provision in s 120 of the Constitution for the States to make provision for the detention in their prisons of persons accused or convicted of offences against Commonwealth laws. Pursuant to authority granted in s 120 of the Constitution and, as to the self-governing territories, s 122 of the Constitution, the Parliament has enacted s 19A of the Crimes Act 1914 (Cth), which assimilates the detention of federal offenders in a State or Territory with State or Territory offenders in relation to their detention and transfer within the State or Territory prison system. Conceivably, that could be a walled prison in or near a metropolitan area or it might be what, for example the Corrective Services Act 2006 (Qld) terms a “work camp” in a rural area: see s 66 of that Act. Federal offenders aside, it is a necessary implication from their context and purpose that the notification and invitation obligations in s 501CA(3) will mesh in with the administration of the State or Territory prison or other detention facility in which the person whose visa has been cancelled is imprisoned at the time. That is exactly what occurred in the present case. At the request of the Minister’s delegate, the notice and the invitation were each physically delivered to the appellant by a DCS officer. They were in this way lawfully given to the appellant for the purposes of s 501CA(3). Insofar as Aciek stands for a contrary proposition, it should be over-ruled.
Conclusion
259 For the reasons given, there is no merit in any of the grounds of appeal. The appeal should therefore be dismissed, with costs.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. |
Associate:
Dated: 16 December 2019
