Federal Court of Australia

BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 201

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs, as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MARKOVIC AND ANDERSON JJ:

1    This is an appeal from orders made on 7 June 2023 by the Federal Circuit and Family Court of Australia (Div 2) including an order dismissing an application for judicial review of a decision made by a delegate of the respondent (Minister) cancelling the appellant’s Class AH Subclass 101 Child (Permanent) visa pursuant to s 501(3A) of the Migration Act 1958 (Cth): see BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 469.

Background

2    In 2002 the appellant, a citizen of Cambodia, arrived in Australia with his mother on the Subclass 101 visa.

3    On 22 October 2021 the appellant pleaded guilty to, and was convicted of, various offences including theft from a shop, intentionally causing injury and affray in the Magistrates’ Court of Victoria. He was sentenced to an aggregate term of imprisonment of 18 months, to be served at a correctional centre. The certified extract of the Magistrates’ Court’s order (Certified Extract) included:

Custody Management Issues

The accused may be at risk due to the following:

Psychiatric illness

Other:

SEE FORENSICARE REPORT DATED 3/7/2021

APPEARS INCOHERENT

Recommend all reasonable assessment and supervision to ensure safe custody.

4    On 1 November 2021 an officer from the Department of Home Affairs (as the Minister’s Department was then known) sent by email to Ravenhall Correctional Centre a questionnaire to be handed to the appellant. In the covering letter addressed to the appellant the Department noted that it “wishe[d] to clarify [the appellant’s] immigration status in Australia”. The completed questionnaire was returned to the Department under cover of an email sent on 9 November 2021 (9 November 2021 Email). In that email an officer from Ravenhall stated:

Please refer attached and be advised Correctional Officer has mentioned [the appellant] was very confused by these questions.

5    On 24 November 2021 a delegate of the Minister cancelled the appellant’s Subclass 101 visa under s 501(3A) of the Act (Cancellation Decision). Later that day a Departmental officer emailed to Ravenhall a notice of visa cancellation under s 501CA(3) of the Act (s 501CA(3) Notice) which notified the appellant of the Cancellation Decision, set out particulars of “relevant information” as required by s 501CA(3), included an invitation to seek revocation of the Cancellation Decision and informed the appellant that any representations he wished to make in relation to revocation of the Cancellation Decision had to be made within 28 days after he was given the s 501CA(3) Notice. The Department’s email included:

A delegate of the Minister for Department of Home Affairs has cancelled the visa held by [the appellant] pursuant to s.501 of the Migration Act on 24 November 2021.

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.

…

    (Underlining and emphasis in original.)

6    On 1 December 2021 the s 501CA(3) Notice was handed to the appellant.

7    An affidavit sworn by Natalie Young, a lawyer employed by Victoria Legal Aid (VLA), on 12 October 2022 in support of the application for judicial review later filed in the Federal Circuit Court includes the following evidence in relation to the events of 1 December 2021:

2.    On 1 December 2021 a social worker employed by Forensicare from the Erskine Unit at Ravenhall Correctional Centre contacted VLA on behalf of the [appellant] seeking urgent legal advice in relation to the cancellation of his visa on 24 November 2022. This referral is Annexure NY-1 to this affidavit.

3.    On 3 December 2021, VLA provided some advice to the [appellant] over the telephone. I can see from VLA’s database that the lawyer who provided this advice advised the [appellant] that he should seek revocation of the cancellation of his visa. VLA confirmed that the [appellant] was at that time in the Erskine Unit at Ravenhall.

4.    On 3 December 2021 VLA referred the [appellant] to Refugee Legal.

8    Annexure NY-1 to Ms Young’s affidavit was an email dated 1 December 2021 from Sonya Jenkins, a social worker with Forensicare, to VLA which included:

[The appellant] has provided verbal consent for me to contact VLA to request urgent legal assistance. [The appellant] has been served with a Notice of Visa Cancellation under section 501(3A) of the Migration Act 1958. Please find the documentation attached.

9    On 23 December 2021 an application was made to the Victorian Civil and Administrative Tribunal (VCAT) by Ms Jenkins on behalf of the appellant. The application included under the heading “reasons for application”:

An urgent application for Guardianship is being submitted due to the seriousness of [the appellant’s] situation and a need for best-interest based decisions to be made in regard to legal and personal matters. On 01/12/2021 [the appellant] received a notification that Department of Home Affairs intends to cancel his Visa and he has 28 days to provide reasons requesting that this not occur. On 22/12/2021 [the appellant] received a parole application. Legal assistance was sought through Refugee Legal Service (RLS) for [the appellant]. RLS have stated that they are unable to assist however, reasons for this have not been provided. It is possible that [the appellant] has been assessed as not having capacity. On 17/12/202l [the appellant] was assessed by a Consultant Psychiatrist as having ‘nil insight’ into his circumstances and it was considered that entrenched, firmly held, bizarre and grandiose delusions were colouring his decision-making regarding his possible deportation. This assessment was confirmed by an alternate Consultant Psychiatrist on 23/12/2021 (report attached).

10    On 11 January 2022 VCAT made orders under the Guardianship and Administration Act 2019 (Vic) appointing the Public Advocate, Office of the Public Advocate, as the appellant’s guardian.

11    Between July and September 2022, the appellant’s legal representatives and the Department exchanged correspondence. In doing so, the appellant asserted that he had not received effective notice of the Cancellation Decision for the purposes of s 501CA(3) of the Act. The Minister did not accept that to be so.

12    On 12 October 2022 the appellant commenced a proceeding in the Federal Circuit Court seeking judicial review of the Minister’s decision to give the s 501CA(3) Notice.

Legislative framework

13    Both the proceeding before the primary judge and the appeal concern the construction of s 501CA(3) of the Act. That section is enlivened when the Minister cancels a visa under s 501(3A) of the Act because the Minister is satisfied that the person does not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(a), (b) or (c) of the Act and 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.

14    Subsections 501(6) and (7) of the Act relevantly provide:

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

…

Otherwise, the person passes the character test.

Substantial criminal record

(7)    For the purposes of the character test, a person has a substantial criminal record if:

…

(c)    the person has been sentenced to a term of imprisonment of 12 months or more; or

…

15    Section 501CA of the Act applies where the Minister makes a decision, referred to as the original decision, under s 501(3A) to cancel a visa that has been granted to a person. At the time the section provided:

(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.

16    The period within which a person must make representations for the purposes of s 501CA(3)(b) of the Act is 28 days after the person is given the notice and the particulars of relevant information under s 501CA(3)(a) of the Act: see reg 2.52(2)(b) of the Migration Regulations 1994 (Cth).

The Federal Circuit Court proceeding

17    Before the Federal Circuit Court the appellant relied on an amended application filed on 1 May 2023 in which he sought: first, an order under s 477(2) of the Act extending the time within which to make his application to 12 October 2022, the date of filing of his application for judicial review; and secondly, declarations and orders in relation to the notification given by the Minister pursuant to s 501CA(3) of the Act of the Cancellation Decision.

18    The grounds relied on before the primary judge were (omitting particulars):

1.    The notice of visa cancellation delivered to the Applicant by hand on 1 December 2021, purportedly pursuant to s 501CA(3) of the Migration Act 1958 (Act) (Notice), was not valid and effective because it was not “practicable” within the meaning of s 501CA(3) of the Act to deliver the Notice to the Applicant at the time and in the manner in which it was delivered.

…

2.    Further or alternatively, the Notice was not lawfully given and/or was not valid or effective because its purported delivery to the Applicant constituted a denial of procedural fairness.

…

3.    Further or alternatively, the Notice was not lawfully given and/or was not valid or effective because the Minister acted unreasonably, irrationally or illogically in determining it was appropriate to issue the Notice in the manner and at the time at which it was issued.

19    On 7 June 2023 the primary judge made orders granting the application for an extension of time and dismissed the application.

20    The primary judge considered each of the three grounds raised in the amended application. However, given the grounds of appeal (see [26] below) it is only necessary to set out her Honour’s reasons in relation to grounds 1 and 3.

21    As to ground 1 the primary judge observed that the question before her concerned the statutory construction of s 501CA(3) of the Act. In relation to the expression “as soon as practicable”, the appellant contended that the word “practicable” had been interpreted to mean “effective” or “useful” whereas the Minister contended that the orthodox meaning of “practicable” is “feasible”. Her Honour was of the view that any of those meanings may be correct but that it was necessary to have regard to the surrounding text, the statutory context and purpose in understanding the true meaning of “practicable” for the purposes of s 501CA(3) of the Act: BIF23 at [64].

22    The primary judge observed that there were two components to the phrase “as soon as practicable”, referring to the decision in Stubbings v R [2023] NSWCCA 69 at [48], namely that the words “as soon as” provide a temporal limitation and the word “practicable” concerns that “which is able to be put into practice and which can be effected or accomplished”. Her Honour said that the phrase introduces a list of mandatory actions the Minister is to take at subs 501CA(3)(a) and (b) which require the Minister to give the person the subject of a decision to cancel a visa a written notice and particulars and to invite the person to make representations. Her Honour held that the term “practicable” was part of the temporal condition or limitation on the Minister’s obligation in s 501CA(3) of the Act, noting that this conclusion was consistent with the decision in Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112: BIF23 at [66]-[69].

23    After referring to the reasoning in EFX17 and considering the decision in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 43, the primary judge concluded that the better view was that the phrase “as soon as practicable” was properly construed as a conditional limitation on the time by which the Minister is to deliver written notice of a decision to cancel a visa and invite representations. Her Honour held that the phrase did not extend beyond physical delivery to a requirement that the Minister ensure or consider the recipient’s understanding or capacity to understand: BIF23 at [74].

24    The third ground, which was put in the alternative, concerned the question of whether the Minister acted unreasonably, irrationally or illogically in determining it was appropriate to issue the s 501CA(3) Notice in the manner and at the time at which it was issued. The primary judge agreed that it was at least conceivable that an applicant could establish that a unique circumstance which was within the knowledge of the Minister would render the giving of a notice under s 501CA(3) of the Act legally unreasonable. However, her Honour was not persuaded that this was such a case and that the circumstances supported a finding that the giving of the s 501CA(3) Notice at the time at which it was given was irrational, illogical and/or unreasonable: BIF23 at [98], [103].

25    Her Honour found that in the absence of a psychiatric assessment or guardianship order at the time the s 501CA(3) Notice was given to the appellant, there was nothing conclusive about the appellant’s capacity nor could any such assessment have reasonably been within the Minister’s knowledge at that time even having regard to the notations on the Certified Extract and the observations of the corrections officer when the appellant was faced with the questionnaire. The primary judge found that: at the time the Minister gave the s 501CA(3) Notice to the appellant the Minister was aware that he was incarcerated; the Minister took steps to give the s 501CA(3) Notice to him by arranging hand delivery at the correctional centre with confirmation of receipt signed by the appellant; and this method of delivery was consistent with the range of options in reg 2.55 of the Regulations: BIF23 at [99]-[102].

The Appeal

26    The appellant seeks leave to rely on an amended notice of appeal in which he raises three grounds of appeal:

1.    The primary judge erred by failing to find that the notice of visa cancellation delivered to the [a]ppellant by hand on 1 December 2021, purportedly pursuant to s 501CA(3) of the Migration Act 1958 (Act) (Notice), was not valid and effective because it was not “practicable” within the meaning of s 501CA(3) of the Act to deliver the Notice to the [appellant] at the time and in the manner in which it was delivered.

3.    The primary judge erred by failing to find that the Notice was not lawfully given and/or was not valid or effective because the Minister acted unreasonably, irrationally or illogically in determining it was appropriate to issue the Notice in the manner and at the time at which it was issued.

4.    The primary judge should have found that the Notice could be re-issued (for the reasons given by Rares J in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 43) and, further, that it would be legally unreasonable for the Minister not to now re-issue the Notice, in circumstances where the [a]ppellant is now able to make representations through his guardian, the Public Advocate, pursuant to orders made by the Victorian Civil and Administrative Tribunal under the Guardianship and Administration Act 2019 (Vic).

    (Strikeout and underlining omitted.)

27    Grounds 1 and 3 assert error on the part of the primary judge in relation to grounds 1 and 3 raised in the court below. Ground 4 is a new ground. The appellant requires leave to raise it for the first time on appeal. We address each of the grounds in the order in which they were addressed by counsel for the parties, including, in our consideration of ground 4, whether we should grant leave to rely on it.

Ground 1

28    By ground 1 the appellant contends that the primary judge erred in her Honour’s construction of s 501CA(3) of the Act by failing to find that the s 501CA(3) Notice was not valid and effective because it was not “practicable” within the meaning of s 501CA(3) of the Act to deliver it to him at the time and in the manner in which it was delivered.

Appellant’s submissions

29    The appellant submits that s 501(3A) and s 501CA of the Act together establish a scheme with a compound objective which he summarised as “cancel first; talk later”. He contends that: the first element of the scheme is to protect the community, by ensuring that the visas of persons who are in criminal custody and who fail certain objective limbs of the character test are cancelled before release from criminal custody; and the second element of the scheme is to give fairness after the fact of the cancellation to the person affected by it. The appellant submits that plainly therefore s 501CA of the Act serves a procedural fairness purpose with respect to the exercise of powers bearing on very significant interests, if not rights, of the person. We pause to observe that we do not understand there to be any disagreement about this proposition.

30    The appellant submits that the questions the Court is to address in this case ought to start from the proposition that it is “highly improbable” that Parliament intended to establish a scheme that permits of “objective unfairness” (referring to Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [15]) and, in particular, it is improbable that Parliament intended to establish a scheme that permits the entirely empty gesture of giving to a person under a medical incapacity a single, time limited opportunity, which is not a real opportunity, to make representations about revocation of a cancellation decision.

31    The appellant submits as follows as to the meaning of the phrase “a soon as practicable”:

(1)    the concept of “practicability” is concerned with feasibility and the assessment of feasibility in this context accommodates consideration of when giving the notice and invitation can serve its purpose, namely to give the person the requisite opportunity to make representations about revocation;

(2)    in most cases the requisite opportunity to make representations would be availed by the Minister giving the notice and issuing the invitation at any time. But in rare cases it will not;

(3)    assume, by way of example, that a person is in a coma following a car crash and no guardian has yet been appointed. While the Minister could give a notice and invite the person to make representations, within the period and in the manner ascertained in accordance with the Regulations, about revocation, that would be an utterly hollow exercise. The purpose of the scheme would not be achieved by such an action but would be undermined as the person would not be afforded a (real or meaningful) opportunity to make representations about revocation. The appellant’s circumstances, involving an incapacity to make a decision about whether, and if so, how, to make representations about revocation, involves the same problems;

(4)    the Court should not conclude that the Act authorises and compels “objective unfairness”. Rather, the Court should conclude that in such rare circumstances, and while the person does not have a guardian who can exercise the person’s power to make representations, it is not “practicable” to give the person a notice and invitation because doing so could not then “feasibly” serve the statutory purpose of allowing the person a real opportunity to make representations about revocation; and

(5)    to construe s 501CA of the Act otherwise would lead to manifest unfairness and absurdity and would fail to give effect to its clear purpose. The appellant contends that is also the answer given by the majority in BDS20 at [118] and their Honours’ comments are of persuasive value.

32    The appellant submits that the point he makes is also reinforced when tested from another perspective. He submits that there is Full Court authority for the proposition that, by implication from the Act, a visa application cannot be made by a person who lacks capacity, relying on Soondur v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 578 at [35] and [38], and that the same would follow for a representation under s 501CA of the Act.

33    Finally, the appellant submits that the question of whether it is “practicable” to give a notice and invitation is assessed objectively. He says that the language of s 501CA(3) of the Act, read naturally and in context, invites a question of objective jurisdictional fact that the Court can determine on the evidence adduced before it, even if the evidence was not known to the Minister at the time he sought to comply with s 501CA(3). The appellant submits that this question was not addressed in EFX17 or by Logan J in EFX17 v Minister for Immigration and Border Protection (2019) 273 FCR 508 (EFX17 (Full Court)) and that the primary judge erred in not accepting his construction of s 501CA(3) of the Act but did correctly observe that neither the High Court in EFX17 or Logan J In EFX17 (Full Court) addressed the word “practicable” especially in the context of the stark factual situation that the person lacked capacity to make representations about revocation.

Consideration

34    Ground 1 concerns the construction of s 501CA(3) of the Act and in particular the words “[a]s soon as practicable” in the chapeau to the subsection.

35    Section 501CA(3) of the Act requires that, upon the Minister mandatorily cancelling a visa under s 501(3A) of the Act, he or she is required, “as soon as practicable” after making the cancellation decision, to give the person whose visa is cancelled a written notice of the decision and particulars of the relevant information (as defined in s 501CA(2)) and to invite the person to make representations in the manner prescribed about revocation.

36    In considering the meaning of a legislative provision, the starting point is the text while at the same time regard is had to context and purpose: see SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14] (Kiefel CJ, Nettle and Gordon JJ).

37    Thus the starting point to consider the appellant’s argument is the text of s 501CA(3) of the Act and, in particular, the common and ordinary meaning of the phrase “as soon as practicable”. The appellant and the Minister agree that “practicable” as used in the context of s 501CA(3) of the Act means feasible. So much can be accepted. The Oxford English Dictionary (online edition) defines “practicable” to mean “[a]ble to be done or put into practice successfully; feasible; able to be used; useful, practical, effective”. That is, the steps required by s 501CA(3) of the Act are to be taken as soon as it is feasible to do so.

38    The parties diverge in relation to when the giving of a notice is feasible. The appellant contends that, having regard to the context and purpose of s 501CA(3) of the Act, the question of what is feasible extends beyond the mere act of delivery of the notice and related material prescribed by s 501CA(3) to an assessment by the Minister of the recipient’s ability to respond to a notice. The Minister contends that the term “as soon as practicable”, and the question of what is feasible, concerns only the act of delivery of the notice. That is, as the primary judge found to be the case, the requirement that a notice be given as soon as practicable is part of a temporal limitation imposed on the Minister and does not extend beyond the act of delivery.

39    We agree with the primary judge that, having regard to its text, context and purpose, s 501CA(3) of the Act is concerned only with the feasibility of giving the notice and the invitation to make representations to revoke the cancellation decision. Our reasons follow.

40    First, that construction of s 501CA(3) of the Act is supported by EFX17.

41    In EFX17 the respondent was an Afghani national. His native language was Hazaragi, he spoke only broken English, had limited ability to read and write in English and was suffering from a schizophrenic illness. By letter dated 3 January 2017 a delegate of the Minister notified the respondent pursuant to s 501CA(3) of the Act of the decision to cancel his protection visa made on the same day, explained that the respondent had an opportunity to make representations about revoking the decision to cancel his visa and described how to do so. The delegate’s letter was handed to the respondent by an officer at the Brisbane Correctional Centre, where he was serving a term of imprisonment, on 4 January 2017. The respondent signed a formal acknowledgement of receipt on the same date.

42    On 9 June 2017 the Prisoners’ Legal Service, which was appointed to represent the respondent, wrote to the Department requesting that the notice of cancellation of the respondent’s visa be reissued. They explained that this was because the respondent’s capacity to understand the nature of the visa cancellation and revocation process was “significantly impaired”. The Prisoners’ Legal Service said that all communications between it and the respondent had been through a Hazaragi interpreter but, even with that assistance, the respondent had difficulty understanding advice and instructions on simple topics. The Department subsequently informed the Prisoners’ Legal Service that the notice of cancellation would not be reissued because it was “legally effective”.

43    The Minister contended that the majority in EFX17 (Full Court) erred in concluding that the Minister failed to “give” the respondent the notice and particulars and to “invite” him to make representations having regard to the circumstances of the respondent’s literacy, capacity to understand English, mental capacity and health and facilities available to him in custody: EFX17 at [22]. The issue raised was the meaning of those words in subs 501CA(3)(a) and (b) of the Act.

44    At [23] of EFX17 the High Court (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ) said:

The starting point is the common or ordinary meanings of the verbs “give” and “invite” in s 501CA(3). Those common meanings are, respectively, to deliver or hand over and to request politely or formally. The use of “give or deliver unto” in legislation has been described as the “exact equivalent” of “has been served on” in a context where a document “had come to the hands of the applicant”. Section 28A of the Acts Interpretation Act 1901 (Cth) is also premised upon the assumption that verbs such as “give”, when used in Commonwealth legislation, are alternatives to “serve” so that one manner in which giving a document can be satisfied is “by delivering it”. The verbs “give” and “invite” connote only the performance of an act rather than the consequences of that performance such as the recipient’s capacity to comprehend the content of the English notice given or the English invitation made.

45    At [25]-[26] their Honours relevantly continued:

25    When “giving” and “inviting” bear their ordinary meanings – respectively, of delivering and of requesting formally – with the implication that the delivery and request will be made in English, then it follows naturally that the expression “in the way that the Minister considers appropriate in the circumstances” is only concerned with the method of delivery and request rather than the content. As senior counsel for the respondent properly accepted, a requirement that the Minister consider the capacity of a person to understand the written notice or invitation would require more than physical delivery.

26    The statutory context, including other provisions of the Migration Act, reinforces the conclusions that in s 501CA(3) the verbs “give” and “invite” bear their ordinary meaning and that the expression “the way that the Minister considers appropriate in the circumstances” concerns only the method of delivery or invitation rather than the substantive content.

46    The High Court concluded (at [31]) that the majority of the Full Court in EFX17 (Full Court) erred in finding that the capacity of a person to understand the notice, relevant information or invitation required by s 501CA(3) of the Act was relevant to whether the notice and relevant information had been given or the invitation had been made.

47    Thus a notice is given and invitation is made under s 501CA(3) of the Act even where the recipient cannot speak English and does not understand the notice or invitation. As the Minister submits, no proper distinction can be drawn between a person who cannot as a practical matter respond within the time prescribed to an invitation to seek revocation under s 501CA(3) of the Act because of a lack of language skills and a person who cannot respond because of mental health issues. In each case the person lacks the capacity to respond.

48    Here the appellant relies on the phrase “as soon as practicable” to make good his argument that it is not just the way the notice is given, which was the subject of consideration in EFX17, but the time in which it is given that may bear on whether a notice and invitation is meaningful. But taking the meaning of practicable as feasible, there is no reason why the requirement of giving the notice and making the invitation as soon as feasible imposes any different obligation on the Minister beyond that found to be the case in EFX17 and, more particularly, an obligation to assess the ability of the recipient of the notice and invitation to respond.

49    Secondly, the appellant contends that the concept of “practicability” is concerned with feasibility and the assessment of feasibility in this context accommodates consideration of when giving the notice and making the invitation can serve its purpose. Namely, to give the person the requisite opportunity to make representations about revocation. By way of example, the appellant refers to a person in a coma following a car crash with no guardian appointed and makes the submissions summarised at [31(3)] above.

50    However, what is “practicable” is assessed from the point of view of those persons administering the scheme.

51    In M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146 a Full Court of this Court (Goldberg, Weinberg and Kenny JJ) considered, among other things, s 198(6) of the Act which provides that “[a]n officer must remove as soon as reasonably practicable an unlawful non-citizen if: …”. There follow subs (a) to (d) which set out the requirements to be met. At [64] the Full Court observed that the duty to remove an unlawful non-citizen is not absolute because “it does not arise as soon as the conditions in paras (a) to (d) are satisfied, but as soon thereafter as is ‘reasonably practicable’ for the officer to remove the non-citizen”. At [65] the Full Court said:

The use in legislation of the expression “reasonably practicable” is not novel, and the authorities that discuss its use are numerous. In the authorities and in the Shorter Oxford English Dictionary, the word “practicable” has the meaning “capable of being carried out in action; feasible”: see, eg Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 305 per Stephen and Mason JJ; also Adsett v K and L Steelfounders and Engineers [1953] 2 All ER 320 at 321 per Singleton LJ, and Lee v Nursery Furnishings Ltd [1945] 1 All ER 387 at 389 per Lord Goddard. Whether or not the removal of an unlawful non-citizen is practicable seems to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint. The word “reasonably” in the expression “reasonably practicable” limits or qualifies what would otherwise be an almost absolute obligation: cf Marshall v Gotham Co Ltd [1954] AC 360 at 373 per Lord Reid. The removal of a non-citizen may be practicable in the sense that it is feasible, but not “reasonably practicable” as required by s 198(6) of the Act.

    (Emphasis added.)

52    The obligation in s 501CA(3) of the Act is to give the notice and make the invitation “as soon as practicable” without any limitation or qualification. By analogy with the reasoning of the Full Court in M38/2002 and, having regard to the ordinary meaning of “practicable”, that obligation is concerned with whether the giving of the notice and the making of the invitation is practicable from the point of view of the person giving the notice and making the invitation.

53    The appellant relies on BDS20 at [118] where the majority (Banks-Smith and Jackson JJ), in considering the question of whether more than one notice can be given under s 501CA(3) of the Act, said:

Other hypothetical examples were put in submissions of situations where it was said that s 501CA(3)(b) would lead to injustice if it is construed to be exercisable only once. One was the example where, unbeknownst to the Minister, the person whose visa was cancelled was at the time of receipt of the invitation totally incapacitated from acting on it for medical reasons. It would be unfair to the person if the Minister could not issue the invitation again. We suspect there are other answers to the unfairness in that situation, such as an examination of whether it is indeed “practicable” to give notice to a person who is incapable of receiving it in any meaningful way. But we do not need to explore such hypothetical situations here, because such extreme situations cannot control the proper meaning of the text of s 501CA, in context.

54    The decision in BDS20 is set out in detail below (see proposed ground 4). While as explained below the reasons of the majority in BDS20 are persuasive their Honours’ observations at [118] were obiter and were made in the context of considering a different aspect of the scheme in s 501CA of the Act. In any event, as their Honours observed, such extreme situations cannot control the proper meaning of the text of s 501CA of the Act.

55    Thirdly, the statutory context supports a construction of “practicable” in s 501CA(3) of the Act that promotes certainty in application and which does not depend on the capacity of the recipient to understand and/or respond to the notice given under the section. The relevant context includes:

(1)    a notice must be given under s 501CA(3) of the Act when a person’s visa is mandatorily cancelled under s 501(3A) of the Act. The matters to be included in the notice are prescribed by the terms of s 501CA(3) and the Regulations: it must inform the person of the cancellation decision and invite the person to make representations about revocation of the decision within 28 days after the person is given the notice. There is no discretion as to when a notice is to be given and or by when representations are to be made in support of revocation. The former must be done as soon as practicable and the latter within the time prescribed by the Regulations, 28 days after the notice is given: see BDS20 at [98]; and

(2)    the consequence on a person of visa cancellation is that the person becomes an unlawful non-citizen and must be detained under s 189 of the Act. As discussed below (see [109]) in relation to proposed ground 4, s 198(2B) of the Act provides that an officer must remove a person who is an unlawful non-citizen as soon as reasonably practicable if the person’s visa has been cancelled under s 501(3A) of the Act and where the person has been invited under s 501CA of the Act to make representations about revocation of the cancellation decision: either he or she has not made representations and the time for making the representations has ended; or he or she has made representations in accordance with the invitation but the Minister has decided not to revoke the cancellation decision. This aspect of the legislative scheme, which requires certainty as to the period for which a person is detained leading to removal, equally supports a construction of s 501CA(3) of the Act that promotes certainty.

56    Fourthly, the appellant’s reliance on Soondur by analogy to support his construction, namely that feasibility is to be assessed having regard to when the giving of the notice can serve its statutory purpose of giving the person a real opportunity to make representations about revocation, is inapt.

57    The facts in Soondur were not straightforward. In summary the first appellant, who was the mother of the second and third appellants, applied for, and was subsequently refused, a protection visa in 1992. On 19 December 2000 she made a second application for a protection visa. A delegate of the Minister refused the second application because of the operation of s 48A of the Act which relevantly provided that a non-citizen who has made an application for, and been refused, a protection visa may not make a further application for a protection visa. The appellants sought judicial review but were unsuccessful.

58    On appeal the second appellant challenged the decision refusing the grant of the visa on the basis that she made the second application in her own right. The questions that arose were whether that was in fact so and the consequence of including in a protection visa application an infant child of an adult who is the primary applicant.

59    At the time s 48A of the Act provided:

(1)    Subject to section 48B, a non-citizen who, while in the migration zone, has made:

(a)    an application for a protection visa, where the grant of the visa has been refused (whether or not the applications have been finally determined); or

(b)    applications for protection visas, where the grants of the visas have been refused (whether or not the applications have been finally determined);

may not make a further application for a protection visa while in the migration zone.

…

(2)    In this section:

application for a protection visa includes:

(a)    an application for a visa, or entry permit (within the meaning of this Act as in force immediately before 1 September 1994), a criterion for which is that the applicant is a non-citizen who has been determined to be a refugee under the Refugees Convention as amended by the Refugees Protocol; and

(b)    an application for a decision that a non-citizen is a refugee under the Refugees Convention as amended by the Refugees Protocol; and

(c)    an application covered by paragraph (a) or (b) that is also covered by section 39 of the Migration Reform Act 1992.

60    The appellant draws on [35] and [38] of Soondur where Gray J (with whom Goldberg J agreed) said:

35    Of particular relevance to a case such as the present is a further element that must be considered in determining whether an applicant ``has made'' a previous application. It is trite to say that an act generally only has legal effect if the mind of the person performing it accompanies its performance. The making of a purported application by a person who lacks capacity to make such an application will not be regarded as an application. At common law, infants (that is, persons under the age of 21) were regarded as lacking capacity to do many things, particularly to enter into contracts other than certain defined classes of contracts. Commonly, the age of majority has been reduced by statute to 18. There is statutory recognition of the potential incapacity of a person not of full age who has come to Australia unaccompanied by an adult.

…

38    With respect to the making of applications pursuant to the Migration Act generally, the situation seems to be that it is necessary to inquire whether a particular non-adult applicant in fact had capacity (in the sense of sufficient understanding of the nature of the act involved) to make an application, at the time when the application was made. See Munkayilar v Minister for Immigration and Multicultural Affairs (1997) 49 ALD 588 at 591-592; Al Raied v Minister for Immigration and Multicultural Affairs [2001] FCA 313 at [36]-[39] and Jaffari v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 524 at 537 [37]. Thus, before it can be determined that a person “made” a previous application, there must be a factual inquiry as to the age of that person and as to his or her capacity to understand the nature of such an application.

61    However, in Soondur the Full Court was concerned with the effect of s 48A of the Act and whether a non-citizen had made an application. In those circumstances it is understandable that the non-citizen’s capacity to make the application at the time was relevant. In contrast s 501CA(3) of the Act does not impose any obligation on a non-citizen to do anything. It requires the Minister to take steps to give the notice and the invitation as prescribed “as soon as practicable”.

62    Fifthly, the question of when giving notice under s 501CA(3) of the Act is “practicable” is not a question of objective jurisdictional fact that can be determined on the basis of new material not known to the Minister at the time the notice was given to the person. It is an evaluative question (see BDS20 at [79]) and is to be made based on material known to the Minister.

63    As to the latter, in EFX17 (Full Court), commencing at [232], Logan J in dissent considered the decision in WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94; [2004] HCA 50. His Honour noted at [233] that the issue in that proceeding was “whether, as the Act then stood, a proceeding challenging a Refugee Review Tribunal decision had been instituted in this Court within time” which in turn “depended upon whether and, if so, when the appellant had been ‘notified’ of that tribunal’s decision”. After referring to the obiter statements in the joint judgment of Gleeson CJ, McHugh, Gummow and Heydon JJ in WACB his Honour said at [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

64    At [236] Logan J also relevantly said:

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.

65    At [237] Logan J noted that he was not required to reach any concluded view on the subject because there was no evidence that the Minister either knew or ought to have known of the appellant’s literacy and mental capacity circumstances. His Honour’s statements were expressly approved in EFX17 at [21].

66    There are other reasons which tend against the question of what is practicable being a jurisdictional fact.

67    First, while s 501CA(3) of the Act does not expressly refer to the Minister’s satisfaction as to what is practicable, the evaluative nature of the assessment of that question tends against it being a jurisdictional fact: see Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Limited (2019) 271 FCR 22 at [107] (Kerr and O’Callaghan JJ).

68    Secondly and relatedly, as we have already observed, practicability is assessed from the point of view of the person administering the scheme which tends against it being something that the Court would determine for itself.

69    Thirdly, assessing what is practicable as a jurisdictional fact would, as the primary judge identified at [75] of BIF23, lead to inconvenience and delay, contrary to the purpose of the scheme. There would be uncertainty as to whether a notification under s 501CA(3) of the Act was effective until a court had undertaken its review: see too Chattaway v Minister for Health and Wellbeing (2020) 136 SASR 347 at [34].

70    The appellant relies on Commonwealth of Australia v AJL20 (2021) 273 CLR 43 at [28]-[32], referring in particular to [30]-[32] where a majority of the High Court (Kiefel CJ, Gageler, Keane and Steward JJ) said:

30    In M96A/2016 v The Commonwealth, Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ said that, by this last observation in Plaintiff S4, it had been meant that “there must be objectively determinable criteria for detention”. Their Honours explained that this second limitation on the amplitude of the Parliament’s power to authorise executive detention flows from the need to ensure that:

“Parliament cannot avoid judicial scrutiny of the legality of detention by [legislating] criteria which are too vague to be capable of objective determination. This would include an attempt to make the length of detention at any time dependent upon the unconstrained, and unascertainable, opinion of the Executive.”

31    In Plaintiff M96A, the plurality concluded that ss 189(1) and 196(1) did not exceed the Parliament’s power on this basis because:

“The duration of the detention of transitory persons who are detained under s 189 of the Act is able to be objectively determined at any time, and from time to time. At any time it can be concluded that detention in Australia will conclude if any of the various preconditions [in s 196(1)] are met.”

32    To similar effect, Gageler J said:

“[T]he duration of the detention is capable of objective determination by a court at any time and from time to time. From the moment of the commencement of the detention under s 189, duration of the detention is made by s 196(1)(a) and (aa) to depend on performance of the duty to remove imposed by s 198(1A) or by s 198AD(2).”

(Footnotes omitted.)

71    In AJL20 the High Court considered the construction of ss 189, 196 and 198 of the Act and the question of whether the respondent’s detention was lawful under s 189(1) of the Act. In doing so the majority observed that there must be objectively determinable criteria for detention because the length of detention could not be dependent on “the unconstrained, and unascertainable, opinion of the Executive”.

72    In Chattaway a Full Court of the Supreme Court of South Australia considered the construction of s 269V(2) of the Criminal Law Consolidation Act 1935 (SA) (CLC Act). Relevantly under s 269V(1) if a defendant was committed to detention under Div 4 of Pt 8A of the CLC Act, the defendant was in the custody of the Minister for Health and Wellbeing (Health Minister) and the Health Minister could give directions for the custody, supervision and care of the defendant that the Health Minister considered appropriate. Section 269V(2) provided at subs (a) that the Health Minister may place the defendant under the custody, supervision and care of another and at subs (b) that if there was no practicable alternative, direct that a defendant be kept in custody in a prison.

73    Under s 269V(2) of the CLC Act the Chief Psychiatrist, as delegate of the Health Minister under s 269V(4) of the CLC Act, placed the applicant in the custody, supervision and care of the Chief Executive of the Department for Correctional Services and directed that the applicant be detained at Yatala Labour Prison from 26 March 2020 to 28 July 2020. The applicant commenced an action for habeas corpus and judicial review of the decisions made under s 269V(2) of the CLC Act. He contended that whether “there is no practicable alternative” to keeping him in custody is a jurisdictional fact, which, on an application for judicial review and a writ of habeas corpus, must be proved objectively as a condition precedent to giving the direction contemplated by s 269V(2)(b) of the CLC Act and that it is for the court to determine whether that jurisdictional fact exists: see Chattaway at [11].

74    At [36] Stanley J (with whom Kourakis CJ and Peek J agreed) did not accept that s 269V(2)(b) of the CLC Act evinces a legislative intention that the fact that there is no practicable alternative to prison is an objective jurisdictional fact. His Honour continued:

While I accept it is a fact that conditions the giving of the direction, the concern of the Court is confined to whether the Minister, or his or her delegate, held the opinion that in the applicant’s case there was no practicable alternative to keeping him in custody in prison. However, while it is necessary to prove that the Minister, or his or her delegate, held that opinion, that is not sufficient. The Minister, or his or her delegate, must have formed that opinion reasonably on the material before him or her.

75    Similarly the High Court in AJL20 observed that the Minister must have a rational basis for determining what is reasonably practicable for the purposes of the relevant sections pursuant to which a non-citizen could be detained. Here the same must apply. That is the Minister or his delegate must have formed a view reasonably based on the material before him that it is practicable to give the notice and invitation under s 501CA(3) of the Act. That is not a jurisdictional fact to be determined by the Court.

76    Finally, underpinning the appellant’s submissions in relation to the construction for which he contends is a contention that the Court should, in determining the proper construction, avoid objective unfairness. However, the question of fairness is not a matter that can displace the determination of the proper construction based on the text, context and purpose of the provision in question. In Australian Education Union v Fair Work Australia (2012) 246 CLR 117 at [28] French CJ, Crennan and Kiefel JJ noted that the applicant, the Australian Education Union, pointed to the unfairness of the construction adopted by a Full Court of this Court of the legislative provision in question in that case. In considering that contention their Honours said (at [28]):

Considerations of fairness at this level of particularity are not of great assistance in the construction of a statutory rule with general application. It may be accepted that “justice” and “fairness” denote values underpinning the common law approach to the construction of statutes affecting pre-existing rights and obligations.

At [32] their Honours noted that:

While “fairness” and “justice” denote values underlying the relevant common law principles, it is neither necessary nor desirable, as a general rule, that the task of construction be mediated by broad evaluative judgments invoking that terminology. They carry the risk that the courts may then exceed their proper constitutional function. It is sufficient to focus upon the constructional choices which are open on the statute according to established rules of interpretation and to identify those which will mitigate or minimise the effects of the statute, from a date prior to its enactment, upon pre-existing rights and obligations.

77    While the Minister accepts, and it is the case, that the general purpose of s 501CA(3) of the Act is to give the person whose visa has been cancelled a real opportunity to make representations about revocation of the cancellation decision, that general purpose cannot be a substitute for an analysis of the text of the provision: see Walker v Members Equity Bank Ltd (2022) 295 FCR 225 at [105]-[106] (Wigney J, with whom Lee and Abraham JJ agreed).

78    The text of s 501CA(3) of the Act is clear. As the Minister submits, the assessment of whether and when it is practicable to give a notice and invitation in conformity with the requirements of the section focusses only on when it is practicable or feasible for the Minister to send the communication. It does not require the Minister to assess whether the person receiving the notice understands it or has the capacity to do so. That was also the conclusion reached by the primary judge (at [74] of BIF23). Her Honour was correct to do so.

79    Ground 1 is not made out.

Proposed ground 4

80    Proposed ground 4 is raised in the alternative. It arises if the appellant does not succeed on ground 1, as is the case. By this ground the appellant contends that there can be more than one notification under s 501CA(3) of the Act and that the only reasonable course in this case is for the Minister to issue a second notice.

81    The appellant requires leave to raise this ground for the first time on appeal.

82    Leave to argue a ground of appeal not raised at first instance should only be granted if it is expedient and in the interests of justice to do so. Leave may be granted if a ground not raised below has merit, there is no real prejudice to the respondent and there is an explanation for the failure to take the point below: see VUAX v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 238 FCR 588 at [46]-[48]. As to the latter in Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [24] a Full Court of this Court (Heerey, Moore and Goldberg JJ) stated:

However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge.

83    No explanation was given for why the proposed ground was not raised below. That said, the Minister makes no complaint about that nor does he claim any prejudice. Rather, the Minister opposes the grant of leave on the basis that it lacks sufficient merit, a matter which we consider below.

The appellant’s submissions

84    The appellant relies on the reasons of Rares J in BDS20 to make good this ground and submits that his Honour’s analysis is compelling for the reasons stated therein. He contends that there are circumstances, the present case being one, where it is simply not practicable, in the 28 day period afforded to the person to respond to the notice and invitation issued under s 501CA(3) of the Act, for a person to make representations. The appellant submits that in light of the presumption that Parliament should not readily be taken to interfere with significant rights or interests without fairness, there is no reason to rebut the presumptive application of s 33(1) of the Acts Interpretation Act 1901 (Cth) so as to require or empower the Minister to issue a new notice and invitation in such circumstances.

85    The appellant submits that the fact that the duty to issue an invitation is “tethered to a single and clearly identifiable event from which it is calculated: the making of the original decision”, referring to BDS20 at [79], does not support the majority’s construction. The appellant says that if the Minister becomes aware, after giving notice of cancellation and making an invitation, that the notice or invitation could not have been acted on, the Minister can, conformably with s 33(1) of the Acts Interpretation Act, issue a further invitation “as soon as practicable after the making the original decision”. The appellant says that the majority’s analysis at [83] of BDS20 assumes the answer to the question raised, being whether the Act “contemplate[s] that there might be more than one” invitation.

86    The appellant also submits that the analysis of the majority in BDS20 is substantially weakened if the Court rejects ground 1 and finds that the scheme in s 501CA(3) of the Act could operate so as to result in “objective unfairness”. That is because at [118] of BDS20 the majority considered that “injustice” would be avoided on their construction because, where a person could not make representations in response to a notice and invitation due to incapacity, it would not be “practicable” for the notice and invitation to have been given to them. But if that possibility (advanced in ground 1) is rejected, then the only way to construe the scheme to avoid objective unfairness or injustice is to accept that the Minister could give a further notice and invitation in circumstances such as the present.

BDS20

87    Central to the question of merit of this proposed ground and ultimately the appellant’s success on it, is acceptance by this Court of the reasoning in the dissenting judgment of Rares J in BDS20 over that of Banks-Smith and Jackson JJ. Accordingly, before turning to consider the appellant’s submissions, it is convenient to set out in summary their Honours’ reasoning.

88    The appeal in BDS20 concerned the question of whether the Minister can issue a second invitation to a person under s 501CA(3)(b) of the Act outside the 28 day period prescribed by the Regulations.

89    The appellant, BDS20, was serving an aggregate sentence of seven years and three months imprisonment for two convictions imposed by the District Court of New South Wales on 12 March 2015. On 22 June 2017 a delegate of the Minister cancelled BDS20’s visa pursuant to s 501(3A) of the Act and wrote to the appellant at the correctional centre at which he was incarcerated informing him of the cancellation decision, providing “relevant information” and informing him of his right to make representations to the Minister to revoke the cancellation decision. BDS20 received the notification letter that same day. Two days later his mother collected the notification letter from her son.

90    On 27 June 2017 and 18 July 2017 BDS20’s mother attended the office of Legal Aid in Sydney in relation to her son’s revocation application. However, for reasons that were not explained that application was not emailed to the Department by Legal Aid until 4 September 2017. The Department acknowledged receipt of the application the following day but informed BDS20 that the Minister could not consider it because the representations had been made after expiration of the 28 day period. There was further correspondence between the parties and on 14 November 2017 the Department informed the appellant that it had “determined” that the application was too late and that the Minister could not consider it.

91    On 23 November 2017 BDS20 sought review of the 14 November 2017 “decision” in the Tribunal. BDS20 subsequently withdrew that application on the basis that the Department accepted that he had made representations within time. On 24 February 2020 the Minister made his decision not to revoke the cancellation of BDS20’s visa. In his statement of reasons accompanying that decision the Minister summarised the facts relating to the timing of BDS20’s representations and concluded that he “ha[d] made representations in accordance with the invitation, as required under s 501CA(4)(a) of the Act”.

92    BDS20 filed an application for review of the Minister’s decision. About three weeks prior to the date fixed for hearing the Minister notified him that he now considered and would contend that, because he had not made his representations within 28 days of receipt of the notification letter, he had no power to deal with those representations.

93    The majority of the Full Court identified the question for the Court to be whether, after issuing an invitation in accordance with s 501CA(3) of the Act, the Minister has power to issue another invitation or to reissue the first invitation so that it is effective for the purposes of s 501CA(4)(a) of the Act. Their Honours concluded that the Minister has no such power: see BDS20 at [76].

94    The majority commenced its analysis with the text of s 501CA of the Act.

95    At [80], after referring to the scheme of s 501CA(3) of the Act, their Honours noted that by the time specified in s 501CA(3) the Minister must do two things: give the person certain information about the original decision and invite the person to make representations to the Minister about revocation of the decision. As to the latter the invitation must be to make the representations within a certain time period and in a certain manner, both ascertained by the Regulations. The majority considered that s 501CA(3) of the Act, as a whole, provides that the time for the Minister’s obligation to make the invitation and the time within which the person must respond are not open ended and that “[o]n its face, no discretion is conferred on the Minister about the period for the taking of either of those steps, other than whatever scope he may have in practice to determine when it is ‘as soon as practicable after making the original decision’”.

96    Their Honours then turned to s 501CA(4) of the Act which they observed confers a power on the Minister to revoke the original decision that can only be exercised if two pre-conditions are fulfilled: first, that the person has made “representations in accordance with the invitation”; and secondly, that the Minister is satisfied either that the person passes the character test or that there is another reason why the original decision should be revoked. The majority continued at [81]:

These are expressed as necessary preconditions to the existence of the Minister’s power to revoke the original decision. The power arises “if” the matter stated in s 501CA(4)(a) has occurred and “if” the Minister is satisfied as to one (or both) of the requirements in s 501CA(4)(b). In context, the “if” must mean “only if”. It is not to be supposed that the Minister may revoke the cancellation — a cancellation the statute requires him to effect — if no representations are made.

97    Their Honours opined (at [82]) that the reference to “the invitation” in s 501CA(4)(a) is significant and, upon their analysis, the inescapable inference is that it is the invitation which the Minister is required to extend by s 501CA(3)(b) of the Act. At [83] their Honours said:

The singular nature of that invitation, that is, the fact that the legislation does not contemplate that there might be more than one, is confirmed by the requirement that the invitation be given as soon as — at the earliest time after — the happening of the singular event of the making of the original decision.

98    The majority then considered the context and purpose of the provision. As to the purpose of s 501CA their Honours observed that since the rules of natural justice do not apply to a cancellation decision made under s 501(3A) of the Act, one purpose of subs 501CA(3) and subs 501CA(4) is to require the Minister to give the person an opportunity to be heard. At [98]-[99] their Honours relevantly said:

98    Returning to the legislative intention which emerges from s 501CA, considered in the context of the Migration Act as a whole, in our view the intention is that if a person does not pass the character test in certain objectively ascertainable ways and is serving a term of imprisonment, the person’s visa is to be cancelled without natural justice. The mandatory cancellation of the visa provides the starting point for the process under s 501CA. That process then gives the person a limited opportunity to persuade the Minister why the cancellation should be revoked. It is limited in the sense that the person must invoke it within a certain period of time, and must do so in accordance with an invitation which must itself be made as soon as practicable after the original decision, and must comply with the regulations. No discretion is given to the Minister or anyone else as to when an invitation may be given and by when it must be responded to.

99    Since the obligation to make the invitation arises at a single time — “as soon as practicable after making the original decision” — an invitation issued a second or subsequent time has, by that very fact, not been issued “as soon as practicable”, because it was the first invitation which met that requirement and so the second invitation was necessarily later than “as soon as practicable”. Also, the obligation in s 501CA(3) is an obligation to confine the invitation so that it is an invitation to make the representations within a stated period, ascertained in accordance with the regulations. That period is defined in reg 2.52 of the Migration Regulations so as to end 28 days after the non-citizen is given the notice and the particulars of relevant information. So a second invitation, issued later than “as soon as practicable”, and/or after the expiry of that 28 days, would not be an invitation of the kind required by the provision. …

99    Justice Rares did not answer the question posed for the Full Court in the same way as the majority. His Honour concluded that s 501CA of the Act confers a duty and a power each of which is capable of being exercised more than once. His Honour explained that was because the subject matter of representations addressing the issues under each limb of s 501CA(4)(b) can involve a change in circumstances that arises after the making of the cancellation decision under s 501(3A): see BDS20 at [51].

100    Like the majority, Rares J observed that Parliament’s purpose in imposing the duty in s 501CA(3) on the Minister was to afford the person affected by the original decision procedural fairness. His Honour also noted that there was nothing in s 501(3A) of the Act that requires the Minister to act within any time period, for example he is not required to await the outcome of any appeal from the imposition of a sentence and can act immediately after a person is sentenced to a term of imprisonment of more than 12 months. That, Rares J observed, would require the Minister to act “as soon as practicable” to perform his duty under s 501CA(3). His Honour considered that such a scenario required consideration of the position if the person’s circumstances change after he or she failed either to satisfy the Minister under s 501CA(4) that he should revoke the cancellation decision or to make any representations in accordance with the invitation. At [42] Rares J reasoned that:

Indeed, s 501CA(4)(b)(i) expressly contemplates that, in the representations, the person may be able to satisfy the Minister that he or she passes the character test. That would be possible because s 501(10) requires that a sentence or conviction, that actuated the mandatory cancellation under s 501(3A), be disregarded “for the purposes of the character test” if the conviction concerned has been quashed or otherwise nullified or the person has been pardoned in relation to it and the effect of the pardon is to deem him or her as never having been convicted of the offence. The scheme of the Migration Act recognises the real possibility of the occurrence of any of those events at a time after the issue of an invitation under s 501CA(3)(b) or the making of an adverse decision under s 501CA(4). This consideration suggests that s 33(1) of the Acts Interpretation Act can apply consistently with the legislative purpose of s 501CA to each of the duty in s 501CA(3) and the power in s 501CA(4).

101    At [45]-[46] his Honour further reasoned that:

45    The Minister can be expected to exercise his duty to issue an invitation under s 501CA(3)(b) as soon as practicable after the person is sentenced so as to cause his visa to be susceptible to mandatory cancellation under s 501(3A). If he issues an invitation under s 501CA(3)(b) timeously, and the sentence remains in place when the Minister considers the exercise of his discretion under s 501CA(4), the Minister may decide that the person’s failure to pass the character test outweighs any other reason favouring revocation of the mandatory cancellation.

46    But, the Parliament must have been aware of the real possibility that the sentence could be reduced to below 12 months, or the conviction quashed or the person pardoned, subsequently to the Minister making such a decision. Ordinarily, in such a new factual scenario, s 33(1) of the Acts Interpretation Act would be expected to apply so as to require the Minister to invite the person to make representations in light of what might be decisive new information or circumstances that, if known earlier, would have denied the availability of the power of cancellation under s 501(3A). As explained above, such new circumstances can occur well after cancellation under s 501(3A) and the exhaustion of all the processes under s 501CA so as to make it “practicable” under s 501CA(3), once again, for the Minister to perform the duty under s 501CA(3) so that he could consider the exercise of his discretion under s 501CA(4)(b) if s 501CA(4)(a) were satisfied.

Consideration

102    Having considered the parties’ submissions, in our view proposed ground 4 does not have sufficient merit. It does not have reasonable prospects of success. That factor, coupled with the lack of explanation for not having raised it below, leads us to conclude that it is not in the interests of justice to permit it to be raised for the first time on appeal. Our reasons follow.

103    As a preliminary matter we note that an application for special leave to appeal was made to the High Court in relation to the decision of the Full Court in BDS20. However, the High Court did not need to consider that application because the Minister conceded that the notice issued in that case did not comply with s 501CA(3) of the Act in light of EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 158 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 288 FCR 180. The High Court granted special leave to appeal on that ground and allowed the appeal: see BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCATrans 41.

104    The effect of the orders made by the High Court is that there is “some doubt as to the authority of the” reasons of the Full Court. They are not binding, irrespective of whether they are considered to be “plainly wrong”: see Director of Public Prosecutions v Patrick Stevedores Holdings Pty Ltd (2012) 41 VR 81 at [121] (Maxwell P, Weinberg JA and Ferguson AJA); Nationwide News Pty Ltd v Rush (2020) 380 ALR 432; [2020] FCAFC 115 at [507] (White, Gleeson and Wheelahan JJ). However, in these circumstances the reasons of the majority in BDS20 are analogous to a dissenting judgment: see Sparks v Hobson (2018) 361 ALR 115; [2018] NSWCA 29 at [38] (Basten JA). Further, where a binding authority cannot be extracted from majority judgments, a dissenting judgement “may deserve respectful consideration”: see Jones v Bartlett (2000) 205 CLR 166 at [206]-[207] (Gummow and Hayne JJ).

105    While the reasons of Banks-Smith and Jackson JJ in BDS20 are not binding, in our view their Honours’ reasoning is compelling and we would prefer it over that of Rares J. Their Honours considered the text, context and purpose of s 501CA of the Act. As set out at [98] above, at [98] of BDS20 they held that the Act conferred a limited opportunity to challenge the mandatory cancellation of a person’s visa under s 501(3A) of the Act in that the person must make his or her representations within a prescribed period of time in accordance with an invitation that the Minister is required to give “as soon as practicable” after making the cancellation decision. The obligation to give the invitation arises at a single time, that is as soon as practicable after making the original cancellation decision.

106    Justices Banks-Smith and Jackson observed that their construction of s 501CA(3) was consistent with other aspects of the Act, namely s 189 and s 198(2B) of the Act.

107    The former makes detention mandatory for an unlawful non-citizen. As their Honours noted detention under s 189 of the Act causes suffering for the detainee and cost to the Commonwealth and should not be permitted to continue longer than necessary. Like their Honours we agree that the text of s 189 of the Act supports a view that s 501CA(3) provides a limited window within which the possibility of revocation, which will necessarily extend the period of any immigration detention, is to be invoked.

108    The latter concerns the requirement for an officer to remove “as soon as reasonably practicable” an unlawful non-citizen if a delegate of the Minister has: (a) cancelled the non-citizen’s visa under s 501(3A) of the Act; (b) the non-citizen has not made a valid application for a substantive visa that can be granted when the non-citizen is in the migration zone; and (c) where the non-citizen has been invited to make representations to the Minister pursuant to s 501CA, either the non-citizen has not made representations in accordance with the invitation and the period for making representations has ended or the non-citizen has made representations in accordance with the invitation and the Minister has decided not to revoke the delegate’s decision.

109    As the majority observed at [112] of BDS20, s 198(2B)(c) of the Act sets out how the obligation to remove can be deferred pending the outcome of the process in s 501CA(3) and (4) and, by its language, implies that the process which leads to a deferral can only be invoked by a single invitation. The period for deferral will come to an end when the prescribed period for making representations ends and the invitation to make representations was not taken up, or when the Minister makes a decision not to revoke the cancellation decision, at which time the obligation is to remove the non-citizen from Australia as soon as reasonably practicable. The procedure dictated by s 198(2B) is consistent with their Honours’ construction of s 501CA. The opportunity to seek revocation is limited in the manner their Honours described.

110    The appellant relies on s 33(1) of the Acts Interpretation Act and submits that, in light of the presumption that Parliament would not readily be taken to interfere with significant rights or interests without fairness, there is no reason to rebut the presumptive application of that section.

111    Section 33(1) of the Acts Interpretation Act provides:

Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.

The application of the Acts Interpretation Act or a provision of it to an Act or a provision of an Act is subject to a contrary intention: see s 2(2) of the Acts Interpretation Act.

112    Justice Rares preferred a construction of s 501CA of the Act that attracted the operation of s 33(1) of the Acts Interpretation Act, finding that the scheme of the Act recognises that certain events relevant to the question of whether a person passes the character test may occur after an invitation is issued under s 501CA(3) or an adverse decision is made under s 501CA(4). His Honour was of the view that this suggested that s 33(1) of the Acts Interpretation Act could apply consistently with the legislative purpose of s 501CA to the duty in s 501CA(3) and the power in s 501CA(4) of the Act. We are not persuaded that is so. As explained below, in our view the scheme of s 501CA of the Act evinces a contrary intention.

113    The operation of the scheme in s 501(3A) and s 501CA suggests, as Banks-Smith and Jackson JJ found to be the case, that s 501CA(3) provides for a single notification “tethered to a single event”, namely the cancellation of a visa. The purpose of s 501CA of the Act is to introduce measures to ensure the government can move quickly to take action in relation to non-citizens who pose a risk to the Australian community: see EFX17 at [28]. If more than one notification of the cancellation of a visa and invitation to make representations about revocation of that decision was permitted under s 501CA(3) of the Act, the immigration detention of the person could be extended for an uncertain and indeterminate period defeating the very purpose of s 501CA. That the scheme operates this way is contrary to the intention in s 33(1) of the Acts Interpretation Act that the power in s 501CA(3) of the Act can be exercised from time to time.

114    The Minister referred by analogy to Minister for Immigration and Citizenship v Manaf (2009) 111 ALD 437; [2009] FCA 963 which concerned notification of a decision to grant or refuse a visa under s 66 of the Act. In summary in that case the Department notified the respondent of a refusal to grant her a visa. On 7 August 2007 the notification letter was sent to the address notified by the respondent to the Department. On 22 August 2007 the respondent notified the Department of a change of address. The Department then sent a further letter to the respondent enclosing the first notification letter. However, because of an error the second notification letter was sent to an address that did not exist, instead of to the newly notified address. The first and second notification letters were returned to the Department unopened.

115    The respondent applied to the Tribunal for review of the decision not to grant her a visa. The Tribunal found it did not have jurisdiction to review the decision because, based on the first notification letter, the application had not been made within time. The respondent applied successfully for judicial review of the Tribunal’s decision. The Federal Magistrates’ Court (as the Federal Circuit Court then was) found that the second notification letter amounted to a re-notification which cancelled the first notification letter. The Minister appealed.

116    Before this Court the respondent relied on s 33(1) of the Acts Interpretation Act in support of a contention that the requirement in s 66 of the Act that the Minister notify a visa applicant of the decision whether to grant or refuse a visa can be exercised from time to time and a subsequent notification could displace an earlier one.

117    At [43] of Manaf Sundberg J held that s 33(1) of the Acts Interpretation Act could not operate in the way the respondent sought to have it apply by invalidating or cancelling the legal effect of an earlier performance of a duty. His Honour observed that s 33(1) says nothing about displacing the legal effect of an earlier exercise of power or performance of duty. Relevant to the argument put by the appellant, at [48] his Honour said:

If, contrary to my view, s 33(1) could in an appropriate statutory context operate in the manner sought by the respondent, it could not do so in the present case because the notification scheme of the Act, especially s 494C, discloses a contrary intention. The prescriptive timing regime that runs through the Act is inconsistent with the notion that, as the minister put it, “you can reset the clock as often as you like by just sending a new letter”.

His Honour’s reasoning in this regard applies with equal force to the scheme in s 501CA.

118    Nor do we accept that the reasoning of the majority in BDS20 is substantially weakened because of our rejection of ground 1 of the appeal which the appellant says results in a finding that the scheme in s 501CA(3) could operate so as to result in “objective unfairness”. The scheme in s 501CA(3) operates in a particular way. That from time to time that may result in “objective unfairness” is regrettable, but it is not a basis on which to find that other aspects of the scheme could operate to remediate such unfairness contrary to the natural meaning of the relevant legislative provisions, their context and purpose.

119    The appellant focusses on BDS20 at [118] where the majority considered that there were other answers to the unfairness “such as an examination of whether it is indeed ‘practicable’ to give notice to a person who is incapable of receiving it in a meaningful way”. However, their Honours did not need to explore the hypothetical situations put to them in argument for the same reason as we have expressed above, namely because “such extreme situations cannot control the proper meaning of the text of s 501CA, in context”.

Ground 3

120    By ground 3 the appellant contends that it was legally unreasonable for the Minister to provide the s 501CA(3) Notice to him at the time it was issued in light of the circumstances known to the Minister at that time.

The appellant’s submissions

121    The appellant submits that if he has not succeeded on grounds 1 or 4 and the Minister is taken to have a correct appreciation of the Act and therefore knows there is no other solution then, if it later emerges on evidence before the Court that there was information available to the Minister that suggested there might be a problem about the person’s decision-making capacity, orthodox principles of reasonableness would dictate that the Court would have regard to the legislative framework and the evidence.

122    The appellant relies on information that was in fact before the Minister at the relevant time, namely the Certified Extract (see [3] above) and the report of a corrections officer in the 9 November 2021 Email (see [4] above) that the appellant was “was very confused” by the questionnaire provided to him for completion. The appellant submits that the information before the Minister did not need to show conclusively that the appellant would be unable to make, or was impaired from making, representations about revocation without a guardian. He contends that the information strongly pointed to that conclusion and ought to have put the Minister’s delegate on inquiry as to this question.

123    The appellant also refers to the chronology noting that he was convicted and sentenced to a term of imprisonment of 18 months, with a non-parole period of 12 months, on 22 October 2021 such that he could not be released from criminal detention until 21 October 2022 at the earliest. He says that no decision by the Minister could cut across the effect of the criminal justice regime as he could not be removed before serving his sentence. Therefore, there was no urgency to give a notice or invitation and the delegate did not give the s 501CA Notice as soon as it would have been physically possible to do so. The delegate waited about six weeks and could plainly have waited longer, if necessary, including so as to facilitate ascertaining whether the appellant was able to make representations or whether, as the information before the delegate suggested, the appellant might be unable to do so. The appellant contends that this is an obvious inquiry about a critical fact, easily obtained.

Consideration

124    The evaluation of whether a decision is legally unreasonable is to be assessed having regard to the terms, scope and purpose of the statutory source of power such that it cannot be said to be in the range of possible lawful outcomes: see Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [34].

125    In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [78]-[79] Nettle and Gordon JJ, in considering the nature of the court’s task where there is an allegation that a decision is legally unreasonable, said:

78    The task of the court, where it has been alleged that a decision is legally unreasonable, is to ask whether the exercise of power by the decision-maker was beyond power because it was legally unreasonable.

79    That task requires the court to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision and, thus, assess whether the decision was lawful, having regard to the scope, purpose and objects of the statutory source of the power.

    (Footnotes omitted.)

126    To similar effect at [54] Gageler J said:

The question of whether or not a decision made or action taken in purported exercise of a statutory power is legally unreasonable is accordingly a question directed to whether or not the decision or action is within the scope of the statutory authority conferred on the repository. Being a question as to the limits of statutory authority, it is a question in respect of which our constitutional system demands of the judicial branch of government the ability to give a unique answer. Whilst “there has never been a pervasive notion that limited government mandated an all-encompassing judicial duty to supply all of the relevant meaning of statutes”, the constitutional entrenchment of judicial power in courts of competent jurisdiction leaves no room for doubt that “the judicial duty is to ensure that [an] administrative agency stays within the zone of discretion committed to it by its organic act”.

See too SZVFW at [12] (Kiefel CJ), [135] (Edelman J).

127    Here, the relevant power was that exercised under s 501CA(3) of the Act which requires the Minister to notify a person as soon as practicable after the person’s visa is mandatorily cancelled under s 501(3A) of that decision and to invite the person to make representations about its revocation. As we have held to be the case in relation to ground 1, what is practicable is to be assessed from the point of view of the person giving the notification made under s 501CA(3) and does not have regard to a person’s capacity to understand and respond to the notification.

128    Further as the Minister submitted, s 501(3A) of the Act imposes a duty on the Minister to cancel a visa if the Minister is satisfied that the person meets the requirements of subs (a) and subs (b). The Minister has no discretion in that regard. Similarly, once the visa is cancelled pursuant to s 501(3A) the Minister has no discretion in relation to the provision of the notification and invitation under s 501CA(3) of the Act. He or she must notify the person “as soon as practicable”, a requirement which, as explained above, does not have regard to the capacity of the person to understand or respond to the notice. Nor does the Minister have any discretion in relation to the time by when a response to the invitation to seek revocation of the cancellation decision can be made: see BDS20 at [98].

129    That the appellant was not due for release from prison until October 2022 and thus could have been notified at a later time is not to the point. The duty imposed on the Minister by s 501CA(3) of the Act is to notify the person affected of the mandatory cancellation decision as soon as practicable or, adopting the agreed meaning of the word practicable by the parties, as soon as feasible. It would be contrary to the duty imposed on the Minister to delay giving the notice and making the invitation for a reason not connected with the feasibility of doing so.

130    Even if we were wrong about the construction of s 501CA(3) of the Act and the meaning to be given to the phrase “as soon as practicable” the appellant has not established that it was legally unreasonable for the Minister to give the s 501CA(3) Notice on 1 December 2021. That is so for the following reasons.

131    Legal unreasonableness is to be judged at the time the power is exercised or should have been exercised and is not to be assessed through the lens of procedural fairness to the applicant: see Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26].

132    As at the date of the s 501CA(3) Notice, 1 December 2021, there was no information available to the Minister which pointed to the conclusion that the appellant was under an incapacity or which put the delegate on inquiry as to the appellant’s capacity to make representations about revocation. The appellant relies on the decision in Wei v Minister for Immigration and Citizenship and Border Protection (2015) 257 CLR 22 at [49]-[50] where Nettle J said:

49    It does not follow, however, that there is nothing which can be done for the plaintiff. In Prasad v Minister for Immigration and Ethnic Affairs, Wilcox J held that, although it is not enough to establish jurisdictional error on the part of an administrative decision-maker that the court may consider that the sounder course for the decision-maker would have been to make further inquiries, where it is obvious that material is readily available which is centrally relevant to the decision to be made, and the decision-maker proceeds to make the decision without obtaining that information, the decision may be regarded as so unreasonable as to be beyond jurisdiction. In Ex parte Helena Valley/Boya Association (Inc), Ipp J, sitting as a member of the Full Court of the Supreme Court of Western Australia, applied Wilcox J’s reasoning in Prasad in order to conclude that a local council had failed properly to apply its mind to the question which needed to be decided in determining whether to approve a planning application. In Minister for Immigration and Ethnic Affairs v Teoh, Mason CJ and Deane J expressly approved of Wilcox J’s reasoning in Prasad and of its application in appropriate cases. And in Minister for Immigration and Citizenship v Le, Kenny J surveyed the course of authority following Prasad and held that it was legally unreasonable for the Migration Review Tribunal to fail to make an obvious inquiry. Based on those decisions, in Minister for Immigration and Citizenship v SZIAI, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ similarly concluded that there may be circumstances in which a merits reviewer’s failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, can be seen to supply a sufficient link to the outcome of review to constitute a constructive failure to exercise jurisdiction.

50    In this case, the delegate was put on inquiry. As a result of the return of his letter of 3 February 2014 as “unclaimed”, he knew that the address shown in the records of the Department of Immigration and Border Protection as being the plaintiff’s address was not the plaintiff’s address. As a result of the return of his letter of 25 February 2014, he also knew that the address of the plaintiff supplied by the University was unlikely to be the plaintiff’s address. Inasmuch as the delegate knew that none of the communications which he had sent to the plaintiff had reached the plaintiff, the delegate knew that the plaintiff did not know that the Minister proposed to cancel the visa. As a result, the delegate also knew that the plaintiff would not have the opportunity, which ss 119–121 of the Migration Act contemplated that the plaintiff should have, of demonstrating to the Minister why the supposed ground of cancellation did not exist. Thus, until the prescribed time for responding under s 121(2) expired, it would have been apparent to the delegate, or it should have been, that it was more than usually important for the delegate to be as certain as reasonably possible that the proposed ground of cancellation existed, and thus for the delegate to be as certain as reasonably possible that the plaintiff was not in fact enrolled at the University.

(Footnotes omitted. Emphasis added.)

133    The appellant relies on two matters.

134    The first is the notations in the Certified Extract. But those notations did not suggest that the appellant lacked legal capacity at the time of sentencing. As the primary judge found at [85] of BIF23 the appellant was represented at the sentencing hearing in the Magistrates’ Court, suggesting that he had sufficient capacity to provide instructions to his lawyer; the appellant was sentenced to a term of imprisonment without, as the primary judge observed, the requirement of a court assessment order under s 91 of the Sentencing Act 1991 (Vic). That section empowers the court to make a Court Assessment Order, defined in s 90 to be, in effect, an order for a person to be compulsorily examined by an authorised psychiatrist, in relation to a person if:

(a)    on the trial or hearing of the person for an offence the person is found guilty or pleads guilty to an offence; and

(b)    the person is not in custody pending sentencing; and

(c)    the criteria set out in subsection (2) apply to the person; and

(d)    the court has received a report from the authorised psychiatrist for the designated mental health service where it is proposed to assess the person stating that there are facilities or services available at that designated mental health service for the assessment of the person; and

(e)    in the case of an Inpatient Court Assessment Order, the assessment cannot occur in the community.

The criteria set out in s 91(2) of the Sentencing Act are cumulative and include that the person appears to have a “mental illness”, which, at the time, was defined in s 3(1) of the Sentencing Act, to have the same meaning as in the Mental Health Act 2014 (Vic).

135    That is, at the time an order under s 91 of the Sentencing Act was available to the Magistrates Court, as the sentencing court, to deal with a person with a mental illness. However, that court did not engage the power in s 91 to make a Court Assessment Order and obtain a psychiatrist’s report. The available inference is that neither the psychiatric illness, the apparent incoherence, or the Forensicare report dated 3 July 2021 referred to in the Certified Extract demonstrated or reported any issues with the appellant’s legal capacity or, put another way, any legal incapacity on his part. That is, the content of the Certified Extract did not point to any material that would be readily available or obvious inquiry to be made by the delegate in relation to issuing the s 501CA(3) Notice.

136    The second matter relied on is the observation of the corrections officer contained in the 9 November 2021 Email that the appellant “was very confused” about the questions in the questionnaire. That statement does not put the Minister on notice of any legal incapacity on the part of the appellant. Contrary to the appellant’s submissions, the questions were not all “straightforward”. They sought details of the appellant’s first arrival in Australia and about his parents’ details and immigration status. As the Minister submitted the statement made in the 9 November 2021 Email might equally indicate that the appellant was not confused by the content of the questions, or by any ability to answer them, but by why he was being asked these questions at all given that this was at a time prior to the Cancellation Decision. Again the 9 November 2021 Email did not point to any material that would be readily available or obvious inquiry to be made by the delegate at the time of issuing the s 501CA(3) Notice.

137    Nor is there any evidence that the information about the appellant’s capacity could have been “easily obtained” as the appellant contends. Based on the material upon which the appellant relies there was no obvious person to ask about the appellant’s legal capacity, for example his family members. Further, the inference to be drawn from the Certified Extract is that the Forensicare report already obtained in the Magistrates’ Court did not indicate any issue with legal capacity. If the suggestion is that the delegate ought to have obtained a new expert opinion on the appellant’s capacity, based on a further assessment of him, that would not be information that could be “easily obtained”.

138    For those reasons ground 3 is not made out.

Conclusion

139    Leave to raise proposed ground 4 is refused. The appeal should be dismissed. As the appellant has been unsuccessful, he should pay the Minister’s costs, as agreed or taxed.

140    We will make orders accordingly.

Associate:

Dated:    19 December 2023

REASONS FOR JUDGMENT

DERRINGTON J:

141    I have had the advantage of reading the draft reasons for judgment of Markovic and Anderson JJ. I agree that the appeal should be dismissed with costs for the reasons given by their Honours.

Associate:    

Dated:    19 December 2023