Aciek v Minister for Immigration
[2017] FCCA 3237
•20 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ACIEK v MINISTER FOR IMMIGRATION | [2017] FCCA 3237 |
| Catchwords: MIGRATION – Application to extend time for applying for judicial review of the sending of a notice purportedly pursuant to s.501CA(3) of the Migration Act 1958 (Cth) (Act) in relation to a decision made under s.501(3A) of the Act to cancel the applicant’s visa – whether applicant gave reasonable explanation for delay – whether it was reasonably arguable that the respondent owed the applicant a duty to accord the applicant procedural fairness when sending the purported notice – whether it was reasonably arguable that the purported sending of the notice was invalid because the tasks prescribed by s.501CA(3) of the Act could only be performed by the respondent personally or by a person to whom the power to give the notice had been delegated under s.496 of the Act, and the notice was not given by the respondent personally or by a person to whom the power to give the notice had been delegated – whether it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act – order extending time made – person who purported to give notice did not have power to do so – relief granted. |
| Legislation: Migration Act 1958 (Cth), ss.476, 477(1), 477(2), 496, 497, 501A(2), 501BA, 501(3A), 501(6), 501(6)(a), 501(7), 501CA, 501CA(2), 501CA(3), 501CA(4), 501F, 501G Migration Regulations 1994 (Cth), reg.2.52(2)(b), 2.55 |
| Cases cited: Annetts v McCann (1990) 170 CLR 596 Carltona Ltd v Commissioners of Works & Ors [1943] 2 All ER 560 Dainford Ltd v Smith (1985) 155 CLR 342 Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 |
| Applicant: | ACIEK AKEC ACIEK |
| Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| File Number: | SYG 2837 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 5 December 2017 |
| Date of Last Submission: | 5 December 2017 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr R Turner of Turner Coulson Immigration Lawyers |
| Solicitors for the Respondent: | Ms M Donald of Sparke Helmore |
ORDER
Pursuant to s.477(2) of the Migration Act 1958 (Cth) (Act) the time for the applicant making an application to the Federal Circuit Court of Australia for a remedy to be granted in the exercise of the Court’s jurisdiction under s.476 of the Act is extended to 13 September 2017.
DECLARATION
The letter dated 22 February 2016 from an officer of the Department of Immigration and Border Protection addressed to the applicant and stating that the applicant’s Class XB Subclass 202 Refugee and Humanitarian (Permanent) visa (Applicant’s visa) was cancelled on 22 February 2016 is not a notice that was given by the respondent pursuant to s.501CA(3) of the Act.
ORDER
The respondent do that which s.501CA(3) of the Act requires the respondent to do in relation to the decision made by the respondent on 22 February 2016 to cancel the Applicant’s Visa.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2837 of 2017
| ACIEK AKEC ACIEK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
Respondent
REASONS FOR JUDGMENT
Introduction
On 13 September 2017 the applicant filed an application under s.476 of the Migration Act 1958 (Cth) (Act). The remedies the applicant seeks are principally directed to the giving by an officer of the Department of Immigration and Border Protection (Departmental officer) of a letter dated 22 February 2016 addressed to the applicant (Cancellation Notice). The Cancellation Notice was given purportedly under s.501CA(3) of the Act, and states that on 22 February 2016 the applicant’s Class XB Subclass 202 Refugee and Humanitarian (Permanent) visa (Applicant’s Visa) was cancelled under s.501(3A) of the Act.
The applicant accepts the Applicant’s Visa was validly cancelled by a person to whom, pursuant to s.496 of the Act, the Minister had delegated the power to cancel a visa conferred on the Minister by s.501(3A). The applicant submits, however, that the Cancellation Notice was invalid for two reasons. First, the Cancellation Notice was given contrary to a duty the Minister owed to the applicant to accord him procedural fairness. Second, the tasks prescribed by s.501CA(3) of the Act could only be performed by the Minister personally or by a person to whom the tasks were delegated in writing pursuant to s.496 of the Act; but the Cancellation Notice was not given by the Minister, and the Minister did not delegate to the Departmental Officer who purported to give the Cancellation Notice the tasks prescribed by s.501CA(3) of the Act.
The applicant also submits that the Cancellation Notice, if valid, was not “given” to the applicant, as required by s.501CA(3) of the Act. The applicant relies on two grounds. First, the applicant had not been made aware of the Cancellation Notice or, at least, of the substance of its contents. Second, the Minister was required, but failed, to give the Cancellation Notice by one of the methods prescribed by reg.2.55 of the Migration Regulations 1994 (Cth) (Regulations).
This statement of the applicant’s grounds ignores what is common ground between the parties; and that is that the relevant “migration decision” for the purposes of s.477(1) of the Act to which the relief claimed in the application is directed is the giving of the Cancellation Notice; the Cancellation Notice was given, or purportedly given on 22 February 2016; the application to this Court was made outside the 35 day period prescribed by s.477(1) of the Act; and the applicant, therefore, requires an order under s.477(2) of the Act before I can determine the merits of the applicant’s claims for relief. It is also common ground that, when considering whether an order should be made under s.477(2) of the Act, it is relevant to consider whether the applicant has given an adequate explanation for not applying to this Court within the 35 day period prescribed by s.477(1) of the Act, and whether the grounds on which the applicant relies have sufficient merit to warrant the making of an order under s.477(2) of the Act.
With the agreement of the parties I heard submissions both on whether an order under s.477(2) of the Act should be made and on the substantive merits of the applicant’s claims, indicating that, in my reasons for judgment, I will consider separately the application for an order under s.477(2) and, if I were to be satisfied that such order should be made, the substantive merits of the applicant’s claims. In these reasons, therefore, I will consider separately the questions of whether an order should be made under s.477(2) of the Act and, if so, whether the applicant is entitled to the relief he seeks.
Background
The applicant is a national of South Sudan. He was granted the Applicant’s Visa on 10 February 2004.
On 7 May 2014 the applicant was convicted in the District Court of South Australia of a number of offences. He was sentenced to a head sentence of four years and eleven months with a non-parole period of two years and two months.
The applicant’s conviction, and his serving that sentence, called into play s.501(3A) of the Act, which provides as follows:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph (a) of s.501(6) of the Act provides that, for the purposes of s.501, a person does not pass the character test if “the person has a substantial criminal record (as defined by subsection (7))”. Subsection 501(7) of the Act provides that, for the purposes of the character test, a person has a “substantial criminal record if”, among other things, “the person has been sentenced to a term of imprisonment of 12 months or more”.
On 22 February 2016 the Minister, through a delegate, exercised the power conferred by s.501(3A) of the Act by cancelling the applicant’s visa. The decision was an “original decision” within the meaning of s.501CA(1) of the Act to “cancel a visa that has been granted to a person”. Being an “original decision” s.501CA(3) of the Act required the Minister to do two things “as soon as practicable”. The first was to give the applicant a written notice that sets out the Minister’s original decision together with particulars of the “relevant information”, being the information specified in s.501CA(2) of the Act. The second thing s.501CA(3) of the Act required the Minister to do was to invite the applicant 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”.[1]
[1] The period within which representations had to be made have been prescribed by the Regulations. Under reg.2.52(2)(b) of the Regulations the period for making the representations provided for by s.501CA(3)(b) is “within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act”.
The purpose of the Minister’s giving the notice provided for by s.501CA(3) is revealed by s.501CA(4) of the Act:
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.
The power conferred under s.501CA(4) of the Act to revoke a cancellation of a visa under s.501(3A) is capable of being exercised not only by the Minister personally but also by a person to whom the Minister has delegated that power pursuant to s.496 of the Act.[2] Where it is a delegate of the Minister who decides not to revoke the cancellation of a visa, that decision may be reviewed by the Administrative Appeals Tribunal pursuant to s.500(1)(ba) of the Act.
[2] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [38]
On 22 February 2016 the Departmental Officer or a person on her behalf prepared the Cancellation Notice.[3] It was addressed to the applicant by name and by “Offender ID”. The address was stated to be “Yatala Labour Prison, 1 Peter Brown Drive, NORTHFIELD SA 5085”. The Cancellation Notice contains an email address which, I infer, is the email address of a person employed at Yatala Labour Prison. The Cancellation Notice noted that the purpose of the notice was to advise the applicant that on 22 February 2016 the Applicant’s Visa was cancelled, and that the decision maker was a delegate of the Minister. After setting out the effect of s.501(3A) of the Act, the Cancellation Notice stated that:
a)the delegate was satisfied the applicant did not pass the character test because the applicant has a substantial criminal record within the meaning of s.501(6)(a) on the basis of s.501(7)(a), (b), or (c) of the Act;
b)the delegate’s satisfaction of the matters set out in (a) was based on the sentencing remarks of the Adelaide District Court made on 7 May 2014;
c)at the time the delegate cancelled the Applicant’s Visa the delegate was satisfied the applicant was 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;
d)the applicant has an opportunity to make representations about revoking the decision to cancel the Applicant’s Visa, noting that under s.501CA(4) of the Act the Minister has the power to revoke the cancellation of the Applicant’s Visa if the applicant makes a representation in accordance with the “specified instructions” and the Minister is satisfied that the applicant passes the character test, as defined in s.501 of the Act, or there is another reason why the decision to cancel the Applicant’s Visa should be revoked; and
e)if the decision-maker who makes the decision regarding whether or not to revoke the decision to cancel the Applicant’s Visa is a delegate of the Minister, the decision-maker must follow Direction 65 but if it is the Minister who “makes a revocation decision personally”, the Minister is not bound by Direction 65.
[3] CB16
The Cancellation Notice then provided information about how the applicant may make representations about the revocation of the decision to cancel the Applicant’s Visa, and the time by which such representations must be made.
The copy of the Cancellation Notice that is in evidence before me does not contain a signature. Nor does it contain a name. What it does contain is the following information after the words “Yours sincerely”:[4]
[4] CB19
Position Number: [Seven numbers and two upper case letters]
National Character Consideration Centre
Department of Immigration and Border Protection
The Cancellation Notice was attached to an email that was sent to a number of email addresses.[5] The name of the sender of the email is identified and a position number is assigned to that person. It is the same position number as that stated in the Cancellation Notice except it omits the two upper case letters. The two letters appear to be the initials of the name of the sender of the email. From this it is reasonable to infer, and I do infer, that the Cancellation Notice was given by the person who sent the email to which the Cancellation Notice was attached, and that the Departmental Officer is the sender of the email. The email describes the Departmental Officer’s position as follows:
[5] CB15
[Name]
Case Manager
Position No: [Number stated omitting upper case letters]
Research and Analysis | Mandatory Cancellation
National Character Consideration Centre
Character Assessment and Cancellations Branch | Community Protection Division
Visa and Citizenship Services Group
Department and Immigration and Border Protection
The email included the following:
A delegate of the Minister for Immigration and Border Protection has cancelled the visa held by [the applicant] pursuant to s.501 of the Migration Act on 22 February 2016.
Please provide the attached cancellation documentation to [the applicant] . . .
On 22 February 2016 Mr Michael Guyan sent to the Departmental Officer an email in response to the Departmental Officer’s email stating as follows:[6]
As the Case Manager for the above, the writer hand delivered all the required documentation for the Notice of visa cancellation under subsection 501(3A) of the Migration Act 1958.
. . . .
The writer attempted to serve legal documents to [the applicant] today with regard to his Notification that his Visa has been cancelled effective 22nd February 2016. [The applicant] refused to accept the documents when offered in the presence of Officer CRISAFY, and also refused to sign the acknowledge receipt. Documents were placed into an envelope and into [the applicant’s] property container in his cell, he was advised by the writer to make contact with his legal team and informed that he has 28 days in which to respond.
[6] CB74
The amended application
The amended application does not identify the decision that is the subject of the application. The application as originally filed, however, does so as follows:
Name of decision-maker: Position Number 00001840SD
Office held: National Character Consideration Centre
Date of the decision: 22/01/2016
In the amended application filed on 9 November 2017 a cross has been placed in the two boxes of the prescribed form of application that respectively seek an “order that the decision of the tribunal, Immigration Assessment Authority or Minister be quashed” and a “writ of mandamus directed to the tribunal, Immigration Assessment Authority or Minister, requiring them to determine the applicant’s application according to law”. A cross has also been placed in the box preceding the words “state precisely each other order sought by way of final relief” after which two orders are added. The first is “Costs”; and the second is “A declaration that the First Respondent did not lawfully give the Applicant the Notice”. The amended application then states the following grounds of application:
1.The Applicant was denied procedural fairness.
Particulars
a)The Applicant had a mental illness which was recognised by the District Court of South Australia and, therefore, known to the Respondent.
b)The Respondent, in light of this illness, took no steps to ensure that the Applicant understood the contents and consequences of the decision.
2.The notice has never been lawfully given to the Applicant.
Particulars
(a)The Migration Act 1958 (the Act) s501CA(3) provides
“(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.”
b)Regulation 2.52(2)(b) provides:
“(b) for a representation under paragraph 501CA(3)(b) of the Act – within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.”
c)The Notice must be given by the Minister, or a delegate, to the person.
d)The act of giving something must be matched by it being received.
e)The Notice was sent by email to:
(ii) [email protected]
(iii) [email protected]
(iv) [email protected]
f)None of these people held valid delegation for the purpose of s.501CA(3A) of the Act.
g)There is no evidence that the Notice was given to, or received by, the applicant. There is evidence that the Notice was not given to, or received by, the Applicant.
h)If the Applicant has not lawfully been given the Notice, the time for him to apply for revocation of that cancellation has not yet commenced to run.
It is apparent from these grounds that the applicant does not claim the Applicant’s Visa was not lawfully cancelled pursuant to s.501(3A) of the Act. The grounds are directed to the giving of the Cancellation Notice purportedly pursuant to s.501CA(3) of the Act. The grounds make three claims: the applicant was denied procedural fairness because the Minister knew the applicant suffered from the mental illness identified by the sentencing judge; the Cancellation Notice was never lawfully given to the applicant because none of the persons to whom the Cancellation Notice had been sent by email held a valid delegation of the Minister’s power conferred by s.501CA(3) of the Act; and the Minister or delegate did not “give” the Cancellation Notice to the applicant as required by s.501CA(3).
The grounds stated in the amended application do not claim the Departmental Officer who purported to send the Cancellation Notice was not a person to whom the Minister delegated the power provided for in s.501CA(3) of the Act and, for that reason, the requirements of s.501CA(3) have not been satisfied. At the commencement of the hearing before me, however, Mr Turner, who appeared for the applicant, claimed the Cancellation Notice was invalid because the Departmental Officer who purported to send it did not have delegated to her the power provided for in s.501CA(3) of the Act. Mr Turner made that claim in the course of argument about the production of documents in answer to a notice to produce the applicant had served on the Minister in which he sought the production of all delegations by the Minister under s.501CA(3) of the Act.[7] In the course of that argument Ms Donald, who appeared for the Minister, stated that the power under s.501CA(3) of the Act had not been specifically delegated to the Departmental Officer.
[7] The Notice to Produce is MFI 1.
On the basis of Ms Donald’s statement Mr Turner withdrew his call for the documents referred to in the notice to produce, and the hearing proceeded on the assumptions that the Minister had not delegated to any person the power conferred on the Minister by s.501CA(3) of the Act, and that the applicant claimed that the consequence of the absence of such delegation is that the Cancellation Notice was of no effect. In these reasons for judgment, therefore, I proceed on the basis that one of the grounds on which the applicant relies is that the Cancellation Notice is of no effect because it was not given personally by the Minister, and the power to give the notice and to provide the particulars of the “relevant information” provided for in s.501CA(3) had not been delegated to the Departmental Officer who purported to give it.
Jurisdiction of Court
The source of the Court’s jurisdiction to consider applications for judicial review of migration decisions is s.476(1) of the Act. That subsection provides that, subject to qualifications it is unnecessary for me to set out, this Court “has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”. Paragraph 75(v) of the Constitution provides that the High Court has jurisdiction in all matters in “which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”.
The expression “migration decision” is defined in s.5 of the Act to mean “a privative clause decision”, or “a purported privative clause decision”, or “a non-privative clause decision”, or “an AAT Act migration decision”. A “privative clause decision” is defined in s.474(2) of the Act to mean “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5)”. A “non-private clause decision” is defined in s.474(6) of the Act to refer to the decisions identified in s.474(4) and (5), none of which is relevant to the issues I have to decide.
As I have already noted, the application before me is principally directed to the Departmental Officer’s giving of the letter dated 22 February 2016 to the applicant purportedly pursuant to s.501CA(3) of the Act. That subsection does not confer a discretionary power on the Minister. It imposes a duty on the Minister that accrues “[a]s soon as practicable after making the original decision”. In the case before me, s.501CA(3) imposed a duty on the Minster to notify the applicant of the Minister’s cancellation of the Applicant’s Visa as soon as practicable after the Minister cancelled the Applicant’s Visa. Even though the requirements of s.501CA(3) are mandatory, the act of the Minister (or a properly appointed delegate) may properly be characterised as a “decision” within the meaning of s.474(2) of the Act because under that subsection a “privative clause decision” includes a decision made under the Act “whether in the exercise of a discretion or not”.
The Court, therefore, has jurisdiction to consider the application before me, at least initially for the purpose of determining whether the application has been brought within the 35-day period prescribed by s.477(1). The application is principally directed to the decision purportedly made pursuant to s.501CA(3) of the Act to give to the applicant a notice that the Applicant’s Visa was cancelled and to provide to the applicant particulars of the relevant information. The decision is clearly a “migration decision” because it was made or was purportedly made under s.501CA(3) of the Act.
Is an order under s.477(2) required?
Under s.477(1) of the Act an application to this Court for a remedy under s.476 of the Act must be made to the Court within 35 days “of the date of the migration decision”. Subsection 477(3) of the Act specifies the “date of the migration decision” in a number of different contexts. Relevant to the case before me is s.477(3)(d) which provides that, in any other case not mentioned in paragraphs (a), (b), (c), or (ca) of s.474(3) of the Act the “date of the migration decision” means “the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate”. Subsection 477(5) provides:
To avoid doubt, for the purposes of subsection (1), the 35 day period begins to run irrespective of the validity of the migration decision.
It is clear, therefore, that the date of the migration decision in the case before me is the date on which the Departmental officer gave the Cancellation Notice. That means that the application for judicial review of that decision was made to this Court outside the 35-day period prescribed by s.477(1) of the Act which means that the applicant must obtain an order under s.477(2) of the Act.
Principles governing exercise of power under s.477(2)
Under s.477(2) of the Act the Court may order the extension of the 35-day period prescribed by s.477(1) of the Act if two things are satisfied. First, an application for such an order has been made in writing to the Court specifying why the applicant considers it is necessary in the interests of the administration of justice to make the order. Second, the Court must be satisfied it is necessary in the interests of the administration of justice to make such order.
In SZRIQ v Federal Magistrates Court of Australia Foster J said:[8]
The courts have developed guidelines as to the factors which might ordinarily be taken into account in considering the interests of the administration of justice in this context. Commonly, those factors include:
(a) Whether there has been a reasonable and adequate explanation for the applicant’s delay;
(b) Whether there is any prejudice to the Minister;
(c) Whether the applicant’s substantive case for judicial review is sufficiently arguable to justify the extension of time.
[8] [2013] FCA 1284 at [47]
The Federal Court has held that, on an application under s.477(2) of the Act, the Court can consider no more than whether the applicant’s case has some merit. Mortimer J in MZABP v Minister for Immigration and Border Protection held that a hearing of an application for an extension of time “should not be transformed into a de facto full hearing”.[9] Further:[10]
If a judge travels beyond an examination of the grounds at what should be a reasonably impressionistic level into a fuller consideration of the arguments for and against each ground of review, then in my respectful opinion that is not a function appropriate to a discretion such as that contained in s 477(2).
[9] [2015] FCA 1391 at [63] (cases cited omitted)
[10] [2015] FCA 1391 at [62] (cases cited omitted)
As her Honour noted in the same judgment, the words that have been used to describe the merits a claim for judicial review should have to justify the granting of an extension of time include “is “arguable”, “reasonably arguable”, “sufficiently arguable” or has “reasonable prospects of success””;[11] and, as her Honour also stated, that assessment is to be made on “a reasonably impressionistic level”.[12]
[11] MZABP v Minister for Immigration and Border Protection [2015] FCA 1391 at [63]
[12] [2015] FCA 1391 at [62]
Explanation for delay
The applicant relies on the following matters to explain his delay in filing the application:
a)The applicant suffers from a mental illness which was recognised by the District Court of South Australia “and therefore known to the Respondent”.
b)At no time were the contents or consequences of the decision made known to the applicant.
c)The applicant had no family members or support in South Australia.
d)It was not until the applicant was brought to Sydney that, through the support of his family, the applicant was able to obtain professional advice in relation to the decision.
e)Initially the applicant’s family attempted to file in the Federal Court the application which they filed in this Court, but they were advised by that Court that this Court was the proper court in which to file the application.
f)The applicant lodged his application to this Court as soon as possible after advice was received.
The only evidence that is before the Court that support any of these matters is the sentencing remarks of his Honour Judge Rice of the District Court of South Australia.[13] In those sentencing remarks, his Honour referred to “your psychiatric and psychological issues and these offences flowed from that”. His Honour also referred to a Mr Balfour’s opinion that the applicant’s “presentation and personal history are consistent with” the applicant “suffering a chronic post-traumatic stress disorder which has been exacerbated by [the applicant’s] binge alcohol abuse”.[14]
[13] CB8-10
[14] CB10
I accept that, at the time he was sentenced, the applicant was suffering from psychiatric and psychological issues and chronic post-traumatic stress disorder; and I am prepared to accept the applicant has continued to suffer from these conditions. I am also prepared to accept the applicant had no family support while he was in South Australia. My accepting these matters, however, affords little basis for my being satisfied that the applicant’s condition was such that he was incapable of understanding the contents of the Cancellation Notice or of the need for him to obtain advice. The applicant has given no evidence of what, if anything, he understood was said to him at the time he was given the Cancellation Notice. Nor is there any evidence about when the applicant’s family became aware of the decision to cancel the Applicant’s Visa, when they attempted to file an application in the Federal Court, and when they or the applicant first sought legal assistance. In these circumstances the evidence is insufficient to permit me to be satisfied the applicant has given an adequate explanation for his delay in filing this application.
In addition to these matters the applicant relies on the claims that “the decision is not validly made because it has not been signed or properly given to the applicant” and, therefore, time has “not commenced to run”. These claims, even if correct, afford no explanation for the applicant’s delay in filing the application. They constitute, and the applicant relies on them, as distinct grounds for claiming either that the Applicant’s Visa was not cancelled or, if it was cancelled, the applicant was not properly notified of the cancellation.
Merits of grounds of application
Before I consider the apparent merits of the claims made in the amended application, it is appropriate that I refer to the Minister’s submission that the “Court is confined to considering the validity of the decision to cancel the applicant’s visa pursuant to s.501(3A) of the Act”.[15] I do not accept that submission to the extent the Minister intends to submit the Court does not have jurisdiction to consider whether the Cancellation Notice was a valid notice under s.501CA(3) of the Act, or that the determination of that question adversely to the Minister could not result in the Court granting a remedy.
[15] Respondent’s Written Submissions, [19]
The purpose of the giving of a notice under s.501CA(3) of the Act is to provide to the person whose visa has been cancelled under s.501(3A) of the Act an opportunity to make representations to the Minister with a view to the Minister exercising the power conferred by s.501CA(4) of the Act to revoke the cancellation. Further, it is at the very least arguable that the mandatory nature of s.501CA(3) of the Act implies that the failure to comply with it may affect or potentially affect the exercise of the powers that are available to the Minister or to other Commonwealth officers to deal with persons who have had their visas cancelled and have thus become “unlawful non-citizens” within the meaning of s.14 of the Act.
I now turn to the first of the three grounds contained in the amended application, namely, that the Minister failed to accord the applicant procedural fairness
Arguable case of denial of procedural fairness?
This ground assumes the power conferred by s.501(3A) of the Act to cancel a visa is conditioned by a duty to accord procedural fairness to the visa holder. For reasons I have given elsewhere, it is not arguable that the exercise of the power under s.501(3A) of the Act to cancel a visa is subject to a duty to accord procedural fairness to the person whose visa has been cancelled.[16] First, s.501(5) provides that:
The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
[16] Faalogo v Minister for Immigration [2016] FCCA 2556. Here I repeat most of what I said at [16]-[19]
Second, the duty to accord procedural fairness may be excluded, not only by express statutory provisions, but also by necessary implication of the statute pursuant to which the power is conferred.[17] The power will be excluded by necessary implication where the application of the duty to accord procedural fairness would be inconsistent with the proper operation of the relevant statutory provision conferring that power. [18]
[17] See Annetts v McCann (1990) 170 CLR 596, at page 598, where Mason CJ, Deane and McHugh JJ said: “It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.”
[18] See Aronson and Groves, Judicial Review of Administrative Action and Government Liability, 6th Edition, 2017, at page 459, [7.260]
In my opinion, quite apart from s.501(5) of the Act, it is beyond argument that to imply into the operation of s.501(3A) of the Act a duty to accord procedural fairness would be inconsistent with the scheme of which s.501(3A) forms part. The Act provides a mechanism where the visa holder is given a statutory right to make representations to the Minister about whether the cancellation of that person’s visa should be revoked. It is true that this is different to a visa holder being given a right to make representations before a visa is cancelled. This difference, however, is one of form. In substance, the visa holder is provided with the opportunity to make submissions in relation to the cancellation of the visa by making representations after being notified of the cancellation. It is impossible to imagine that Parliament intended a visa holder to be accorded procedural fairness before the Minister could exercise the power of cancellation under s.501(3A) and also to afford the visa holder the right to make representations after that power is exercised for the revocation of the cancellation.
Even if, contrary to what I have concluded, the power conferred by s.501(3A) of the Act is conditioned by a duty to accord the applicant procedural fairness, the applicant has not articulated the source or content of that duty in the circumstances of this case. The only matters on which the applicant relies is the applicant’s having the mental illness identified by the sentencing judge and the Minister’s being aware of the sentencing judge’s remarks. These matters by themselves, however, were not reasonably capable of generating a duty on the part of the Minister to exercise the power conferred by s.501(3A) of the Act in a manner other the manner in which the power was purportedly exercised.
The applicant’s claim, to the extent it relies on a breach of a duty by the Minister to accord the applicant procedural fairness, would have no reasonable prospects of success.
Arguable case the Departmental Officer did not have power to give Cancellation Notice?
The applicant accepts that the person who purported to cancel the Applicant’s Visa under s.501(3A) of the Act held a valid delegation of the Minister’s power conferred by that section. The applicant submits, however, that the Departmental Officer who purported to give the Cancellation Notice could have given that notice only if the Minister had specifically delegated to the Departmental Officer the tasks the Minister was required to perform under s.501CA(3) of the Act, but no such delegation exists. The applicant submits, therefore, that the Cancellation Notice is invalid because it was not given by the Minister or by a delegate of the Minister.
The Minister accepts that the Departmental Officer who purported to give the Cancellation Notice did not hold any delegation under s.496 of the Act to undertake the tasks prescribed by s.501CA(3) of the Act; but submits no such delegation was necessary. Ms Donald made the following submissions:
Because of section 497, we say that there was no delegation required for the delegate to notify the applicant of the cancellation.[19]
. . . .
We say that there is no delegation in relation to the physical notification of the decision, and that is clear from section 497 of the Act.[20]
[19] T6.45
[20] T9.10
. . . .
Now, I’ve already addressed your Honour on the issue of delegation and we say that, by virtue of section 496 and 497, that there was no delegation required for the delegate to send the notification of the cancellation decision. 496 provides that the Minister may delegate the Minister’s power in the present proceedings; this is not a power. The power is to cancel the visa. . . The delegate had delegation to cancel the visa; the delegate sent the notification in a manner the delegate considered appropriate in the circumstances. The applicant was validly notified and so the only conclusion is that ground 2 has no prospects of success and/or is not arguable.[21]
[21] T25.45; T26.20
Subsection 496(1) provides that the Minister “may, by writing signed by him or her, delegate to a person any of the Minister’s powers under this Act”. Section 497 of the Act relevantly provides as follows:
(2)If the Minister delegates the power to cancel visas, the delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled.
(3)Nothing in subsection . . . (2) shall be taken to imply that:
(a)a person on whom a power is conferred by or under this or any other Act; or
(b)a delegate of such a person;
is required personally to perform all administrative and clerical tasks connected with the exercise of the power.
The Minister in effect submits that the tasks s.501CA(3) of the Act requires the Minister to perform are not a “power”; that those tasks, therefore, do not fall within the expression “Minister’s powers under this Act” in s.496 of the Act; and, for those reasons, the giving of a notice under s.501CA(3) of the Act is not one that is capable of being delegated under s.496 but is a task that, under s.497 of the Act, may be undertaken by some other person because that task would be taken “in connection with the cancellation” of a visa. The Minister may also be taken to make two further submissions:
a)Whether or not the tasks prescribed by s.501CA(3) may properly be characterised as being one of the “Minister’s powers under this Act”, s.497 permits those tasks to be performed by a person other than the Minister or a delegate of the Minister.
b)The delegation of the power conferred by s.501(3A) of the Act to the person who cancelled the Applicant’s Visa impliedly carried with it the delegation to that person of the tasks prescribed by s.501CA(3).
A useful starting point in determining the apparent merits of this part of the applicant’s claims is the general principle stated by Gibbs J (as his Honour then was) in Racecourse Co-operative Sugar Association Ltd v Attorney of the State of Queensland:[22]
When a discretionary power is conferred by statute upon the Executive Government, or indeed upon any public authority, the power can only be validly exercised by the authority upon whom it was conferred. Its exercise cannot be delegated to someone else, unless the statute, on its proper construction, permits such delegation.
[22] (1979) 142 CLR 460 at page 481.
A perhaps broader statement of the principle was given by Brennan J in Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; ex parte Director-General of Social Services (Ombudsman Act Reference Case):[23]
An act done in purported exercise of a statutory power is valid if the act falls within the statutory provision which confers the power. Prima facie an act will not fall within the statute unless it be done by the person in whom the statute reposes the power (whom I shall call “the authority”). Validity is thus dependent upon the identity of the authority and the doer of the act.
[23] (1979) 2 ALD 86 at page 93
This principle is often described by the Latin maxim “delegatus non potest delegare”. The maxim, however, does not describe a rule of law; it “is a rule of construction, requiring the statutory provision which confers the power to be considered in the context of the purposes and objects of the enactment”.[24] Although the principle is usually stated to apply to discretionary powers, the passage from the reasons of Brennan J in the Ombudsman Act Reference Case suggests the principle applies to the exercise of non-discretionary powers. And it has been noted by one commentator that the principle applies “to all persons who are empowered by statute to do anything”.[25]
[24] Dainford Ltd v Smith (1985) 155 CLR 342 at page 356 (Wilson J)
[25] J. Willis “Delegatus Non Potest Delegare” (1943) 21 Can B Rev 257 at page 257
A statute that contains a provision, such as s.496 of the Act, permitting delegation may indicate that the only delegation that is permitted by the statute is one that is granted in accordance with such provision. It has been said, however, that the “presence of an express, and limited, statutory power of delegation does not necessarily exclude the existence of an implied power of a Minister to act through the agency of others”.[26] The distinction, and the significance of the distinction, between a power being exercised by a person to whom the power has been lawfully delegated and a power being exercised by a person, not as the delegate of the power, but as agent of the repository of the power, was explained by Brennan J in the Ombudsman Act Reference Case:[27]
[26] Re Patterson [2001] HCA 51; (2001) 207 CLR 391 at [180] (Gummow and Hayne JJ)
[27] (1979) 2 ALD 86 at pages 93-94.
Where the power is not delegable, but the authority could not have been expected by the Parliament to have exercised it personally in the multitude of instances when its exercise would be required, it has been held that some classes of acts done by others for and on behalf of the authority should be treated as though they were the acts of the authority. . . .
The extent to which an authority may commit to other officials the performance of duties is primarily dependent upon the nature of the power to be exercised. In Ex parte Forster; Re University of Sydney [1963] SR (NSW) 723, the court (Sugerman, Else-Mitchell and Moffitt JJ) at 733 said in reference to the maxim delegatus non potest delegare: “As a matter of the construction of the statute conferring the power, the application of the maxim, and its extent, must be considered with due regard to the purpose and objects of the statute, the character of the power which is conferred, the exigencies of the occasions which may arise with respect to its exercise, and other relevant considerations.”
….
There is a confusing similarity between the exercise of an authority's power by the authorized acts of another, and the exercise by an authority's delegate of the power delegated to him. In either case the act — whether the act of the authorized person or the act of the delegate — is a valid exercise of power. Nonetheless, the sources of validity are different, though it must be said that the term “delegation” has frequently been used to describe either case without distinguishing between them. For some purposes, a distinction must be made.
Where an authority has not delegated his power but he has authorized another to act in exercise of his power, the act is to be done in the name of the authority: London County Council v Agricultural Food Products Ltd [1955] 2 QB 218 per Romer LJ at 224. But where a delegate is exercising the power delegated to him, he may validly exercise that power in his own name: Owendale Pty Ltd v Anthony (1967) 117 CLR 539 at 562, 611.
The foundation authority that identifies the circumstances in which a minister may act through an agent is the judgment of Lord Greene MR in Carltona Ltd v Commissioners of Works & Ors.[28] The issue in Carltona was whether a decision to requisition a factory was validly made. One asserted ground of invalidity was that the power was vested in the First Commissioner of Works who was also a minister, but the minister did not personally direct his mind to the matter the relevant regulation required him to direct his mind. The relevant decision was made by the assistance secretary who acted on behalf of the minister. In rejecting this ground, Lord Greene MR said:[29]
In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministers. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them.
In the present case the assistant secretary, a high official of the Ministry, was the person entrusted with the work of looking after this particular matter and the question, therefore, is, relating those facts to the argument with which I am dealing, did he direct his mind to the matters to which he was bound to direct it in order to act properly under the regulation?
[28] [1943] 2 All ER 560
[29] [1943] 2 All ER 560 at page 563
The principles stated in Carltona were accepted by the High Court in O’Reilly v Commissioners of State Bank of Victoria.[30] In that case Gibbs CJ identified the rationale of the principles stated in Carltona:[31]
Those authorities established that when a Minister is entrusted with administrative functions he may, in general, act through a duly authorized officer of his department. This result depended in part on the special position of constitutional responsibility which Ministers occupy, and in that respect these authorities are distinguishable from cases such as the present. However, they also rest on the recognition that the functions of a Minister are so multifarious that the business of government could not be carried on if he were required to exercise all his powers personally.
[30] (1983) 153 CLR 1
[31] (1983) 153 CLR 1 at page 11
If it be assumed that the tasks prescribed by s.501CA(3) of the Act are properly characterised as a “power”, and, for that reason, are to be counted as one of the “Minister’s powers under this Act” within the meaning of s.496; and if it is assumed s.497 of the Act does not apply to the tasks prescribed by s.501CA(3) of the Act, the applicant would have a reasonably arguable case that:
a)the tasks prescribed by s.501CA(3) of the Act can only be undertaken by the Minister personally or by a person to whom the Minister has delegated the tasks in writing pursuant to s.496 of the Act;
b)given the Departmental Officer had not been delegated the tasks prescribed by s.501CA(3) of the Act, the Cancellation Notice cannot be said to have been validly given by the Minister and, thus, is of no effect; and
c)the Minister is liable to a writ of mandamus requiring him to give a notice under s.501CA(3) of the Act in relation to the cancellation of the Applicant’s Visa.
This, then, requires me to consider whether any of the Minister’s submissions to which I have referred render not reasonably arguable the applicant’s claim that the Cancellation Notice is not valid because the Minister did not delegate to the Department Officer who gave the Cancellation Notice the tasks prescribed by s.501CA(3) of the Act. I begin with the Minister’s submission that the tasks prescribed by s.501CA(3) of the Act cannot properly be characterised as a power.
Are the tasks prescribed by s.501CA(3) one of the “powers of the Minister under” the Act?
Despite the ubiquity of the use of the word “power” in public[32] and private law,[33] and its analysis in jurisprudence,[34] the concept of “power” has not received any substantial analysis in the cases. One reason may be that “power” has a well-understood and sufficiently unambiguous meaning in the various contexts in which the word is usually employed. For present purposes it is sufficient to refer to one denotation of the notion of “power”, namely, a relationship or potential relationship between two persons or two classes of persons in which the first mentioned person (power repository) has the legal capacity to affect the legal rights or interests of the other person or persons.[35] Whether or not in any given case a person has such legal capacity depends on the existence of a basis (power source) which the law recognises gives the power repository the capacity to affect the legal rights or interests of another or others. In the sphere of private law the power source is usually a contract or some other instrument; and in the sphere of public law the power source is usually a statutory provision. Whether in any given case the power repository can lawfully exercise the capacity conferred by the power source depends on the terms contained in the power source. A statutory provision, for example, expressly or impliedly sets out the acts or classes of acts the power depository may or must do or not do, the circumstances in which the power repository may or must do or not do the acts or classes of acts, and the legal consequences of the power repository’s doing or not doing the acts the statutory provision requires the power repository to do or not do.
[32] See, for example, M. Aronson, M. Groves, G. Weeks, Judicial Review of Administrative Action and Government Liability (Sixth Edition) (Sydney: Lawbook Co., 2017) at pages 115-122
[33] See, for example, W N Hohfeld “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning”, (1913-1914) 23 Yale L.J. 16 at pages 44-53
[34] See, for example, A Halpin “The Concept of a Legal Power”, (1996) 16 Oxford Legal Studies 129
[35] This, at least to a large extent, reflects the notion of “power” explained by W N Hohfeld: “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning”, (1913-1914) 23 Yale L.J. 16 at page 44: “A change in a given legal relation may result (1) from some superadded fact or group of facts not under the volitional control of a human being (or human beings); or (2) from some superadded fact or group of facts which are under the volitional control of one or more human beings. As regards the second class of cases, the person (or persons) whose volitional control is paramount may be said to have the (legal) power to effect the particular change of legal relations that is involved in the problem.”
This notion of “power” – the capacity or obligation of a power repository to do or not do an act authorised by the power source that affects the interests or legal rights of another or others – is present in the language by which the principles governing the implication of a duty to accord procedural fairness are stated and expounded. The following is an example:[36]
The implication of procedural fairness is the product of a strong common law presumption applicable to any statutory power the exercise of which is capable of having an adverse effect on legally recognised rights or interests.
[36] CPCF v Minister for Immigration and Border Protection [2015] HCA 1 at [367] (Gageler J)
In my opinion it is reasonably arguable that the word “powers” that appears in the expression “Minister’s powers under this Act” in s.496 of the Act has the meaning I have concluded is carried by the word “power”; and that the expression “Minister’s powers under this Act” denotes all of the acts that provisions of the Act permit the Minister to do or not do, or which require the Minister to do or not do, that affect the legal rights and interests of other persons. In those circumstances, it is reasonably arguable that, subject to the potential application of the Carltona principles (which I briefly address later in these reasons), the set of tasks identified in s.501CA(3) of the Act is a “power” and, hence, is one of the “Minister’s powers under [the] Act” which the Minister must exercise personally, or which he or she may under s.496 of the Act delegate to another person to exercise.
a)First, s.501CA(3) identifies the acts the Minister must do. The Minister must, as soon as practicable after making the original decision, give to the person a “written notice that sets out the original decision” and “particulars of the relevant information”, being the information identified in s.501CA(2), namely, information the Minister considerers “would be the reason, or a part of the reason, for making the original decision” and which 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”. The Minister must invite the person whose visa has been cancelled to make representations to the Minister “about revocation of the original decision”. The Minister must also consider the way that is “appropriate in the circumstances” to give to the person whose visa has been cancelled written notice of the decision to cancel and particulars of the “relevant information”. Further, from the fact the Minister is required to give “particulars of the relevant information”, it follows that s.501CA(3) requires the Minister at the very least to undertake the far from trivial task of identifying and expressing in some way the information he or she considered “would be the reason, or a part of the reason, for making the original decision”.
b)Second, the proper exercise of the tasks prescribed by s.501CA(3) of the Act creates a legal right for the benefit of persons whose visa has been cancelled under s.501(3A). If properly exercised, the giving of a notice under s.501CA(3) creates a right to make representations to the Minister to revoke the cancellation; and the making of such representations, assuming they are made according to the requirements of the notice properly given under s.501CA(3) of the Act, confer a right on the person to apply to a court of appropriate jurisdiction for a writ of mandamus to compel the Minister to consider according to law the representations with a view to determining whether the Minister should exercise the power under s.501CA(4) of the Act to revoke the cancellation of the visa. If, on the other hand, the tasks prescribed by s.501CA(3) are not undertaken, or properly undertaken, by the Minister or his delegate, the person whose visa has been cancelled would be entitled to compel the performance of those tasks by mandamus.
Does s.497 apply to the tasks prescribed by s.501CA(3)?
I next consider the Minister’s submission that s.497 applies to the tasks prescribed by s.501CA(3) of the Act and, for that reason, those tasks did not have to be performed by the Minister or by a person to whom the tasks have been delegated. As I have already noted, s.497(2) of the Act applies when the Minister “delegates the power to cancel visas” and provides that, where that occurs, the “delegation does not require the delegate personally to perform any task in connection with the cancellation, except the taking of a decision in each case whether a visa should be cancelled”. Whether or not the Minister’s submission is correct in the context of the case before me turns on whether the tasks prescribed by s.501CA(3) of the Act are tasks “in connection with the cancellation of the” Applicant’s visa.
In my opinion, it is reasonably arguable that the tasks prescribed by s.501CA(3) of the Act are not tasks “in connection with the cancellation of the” Applicant’s visa.
a)First, s.501CA(3) is premised on the Minister already having made a decision under s.501(3A) of the Act to cancel a visa. That is clear from s.501CA(1) which provides that s.501CA applies “if the Minister makes a decision (the original decision) under subsection 501(3A) . . . to cancel a visa that has been granted to a person”.
b)Second, the word “cancellation” in s.497 of the Act denotes the action of cancelling. That implies that “cancellation” in s.497 covers only those actions that lead up to the decision to cancel the visa, but not any actions that occur after the decision to cancel the visa is made. The decision to cancel a visa under s.501(3A) is effective when the decision is made. It does not require the giving of a notice under s.501CA(3) of the Act.
c)Third, the Ministers submissions appear to assume that the only task prescribed by s.501CA(3) of the Act is the relatively trivial task of communicating a notice to the person whose visa has been cancelled, and that this is an administrative or clerical task to which s.497 applies. Subsection 501CA(3) of the Act, however, requires the Minister to do more than simply communicate a notice. The notice must specify the “relevant information” which includes particulars of the information that “would be the reason, or a part of the reason, for making the original decision”. That implies an active intellectual process which, first, articulates the information that would be the reason, or a part of the reason, for making the original decision and, second, formulates the particulars of that information for inclusion in the notice. These tasks cannot reasonably be characterised as administrative or clerical.
d)Fourth, it is difficult to see how any person, other than the person who made the decision to cancel the visa in the first place, could articulate the information that “would be the reason, or a part of the reason, for making the original decision” to cancel the visa and, hence, formulate the particulars of that information for inclusion in the notice that is given under s.501CA(3) of the Act. That suggests that s.501CA(3) requires the person who made the decision to cancel the visa under s.501(3A), rather than some other person, to undertake at least the task of formulating with a view to including them in the notice to be given under s.501CA(3) the particulars of the information that “would be the reason, or a part of the reason, for making the original decision” to cancel the visa.
Does the delegation of power to cancel visa imply delegation of power under s.510CA(3)?
I have taken the Minister to have submitted that the delegation of the power to cancel a visa impliedly carried with it a delegation of the tasks prescribed by s.501CA(3). It is reasonably arguable that the power to delegate the power to cancel a visa does not impliedly carry with it a delegation of the tasks prescribed by s.501CA(3). As I have already noted, the tasks prescribed by s.501CA(3) proceed on the basis that the visa has been cancelled. Further, section 501CA does not deal with the cancellation of a visa; it deals with a different subject matter, namely, the revocation of a decision to cancel a visa.
Carltona principle
Although not raised by the Minister, it is appropriate that I consider whether on the material before me there is an arguable case that, assuming the Departmental Officer could not exercise the power conferred by s.501CA(3), it was permissible for the Minister to act through an agent and, if so, whether the Departmental Officer acted as the Minister’s agent. Assuming the Minister could undertake the tasks prescribed by s.501CA(3) not only through a delegate but an agent to whom no delegation had been given under s.496 of the Act, there is nothing in the material before me that could reasonably suggest the Departmental Officer was appointed to act as agent for the Minister, or that the Departmental Officer purported to act as the agent for the Minister. The letter does not state it was given on behalf of the Minister. And there is nothing in the Cancellation Notice that could reasonably suggest the Departmental Officer gave or purported to give the Cancellation Notice for or on behalf of the Minister.
Conclusions in relation to ground based on absence of delegation
It is convenient if I now summarise my conclusions about the applicant’s ground based on the absence of delegation. In my opinion it is reasonably arguable that:
a)the tasks prescribed by s.501CA(3) of the Act may properly be characterised as the conferral of power on the Minister to undertake those tasks and, thus, is one of the “Minister’s powers under this Act” for the purposes of s.496 of the Act;
b)the set of tasks s.501CA(3) of the Act requires the Minister to perform is a power to undertake those tasks that is distinct from the power to cancel a visa that is conferred on the Minister under s.501(3A) of the Act so that the delegation of the power under s.501(3A) of the Act to cancel a visa does not imply the delegation of the power to give the notice required by s.501CA(3) of the Act;
c)the power to undertake the tasks prescribed by s.501CA(3) of the Act could only be exercised by the Minister personally or by some person to whom the Minister has delegated the power under s.501CA(3) of the Act or, perhaps, through an agent;
d)assuming the Minister could exercise the power under s.501CA(3) of the Act through an agent without delegating the power to a person, the Departmental Officer did not act as the agent of the Minister.
Given these conclusions, it follows it is reasonably arguable that the Cancellation Notice did not constitute the giving by the Minister of a notice required by s.501CA(3) of the Act
Whether reasonably arguable case Cancellation Notice was not “given”
I will first deal with the applicant’s submission that a notice that is given under s.501CA(3) of the Act must be given in one of the ways prescribed by reg.2.55 of the Regulations. The starting point is s.501CA(3) of the Act which requires the Minister to give the notice referred to in that subsection “in the way that the Minister considers appropriate in the circumstances”. Section 501CA says nothing further about the method by which the Minister may give the relevant notice. In particular, it does not refer to the Regulations providing for the method by which the notice may or must be given.
What I say in the previous paragraph is confirmed by reg.2.55 of the Regulations. Subregulation 2.55(1) provides that reg.2.55 applies to, among other things, the giving of a document under s.501G(3) relating to a decision to cancel a visa under s.501 of the Act (among other provisions) or not to revoke a decision to cancel a visa under s.501CA. Subsection 501G(3) provides that a notice under s.501G(1) of the Act must be given in the prescribed manner. Subsection 501G(1) applies to the making of a decision under s.501(1) or (2) or s.501A(2), s.501BA, s.501CA or s.501F to refuse to grant a visa to a person, or to cancel a visa that has been granted to a person or not to revoke a decision to cancel a visa that has been granted to a person. It is clear that s.501G does not apply to the cancellation of a visa under s.501(3A) but applies to a decision made under s.501CA(4) not to revoke the cancellation of a visa.
In my opinion, therefore, it is not reasonably arguable that the Minister was required to give the notice under s.501CA(3) in any particular manner. It is beyond argument that the obligation is on the Minister to give the notice “in the way that the Minister considers appropriate in the circumstances”.
I finally turn to the applicant’s claim that the Cancellation Notice was not given to the applicant. That is not reasonably arguable. The email from Mr Michael Guyan sent on 22 February 2016 indicates without a doubt that the applicant was made aware of the Cancellation Notice. In those circumstances it is not arguable that the Cancellation Notice, assuming it was given by or on behalf of the Minister, was given to the applicant in the way the Minister considered appropriate.
Should an order under s.477(2) be made?
The question I must now consider is whether it is necessary in the interests of the administration of justice that I make an order under s.477(2) of the Act. Weighing against my answering that question in the affirmative is the applicant’s significant delay in commencing the proceeding, and the absence of evidence that sheds light on the extent to which, if at all, the applicant’s psychological condition affected his ability to understand the nature of the Cancellation Notice and his ability to seek and understand advice about the Cancellation Notice. In favour of my answering the question in the affirmative, on the other hand, is my conclusion that the applicant does have a reasonably arguable case that the Cancellation Notice was not given by the Minister or by a delegate of the Minister. Also relevant are the consequences of not granting an order under s.477(2) of the Act. If an order is not made, the applicant will have no opportunity to have this Court adjudicate on what I have found is a reasonably arguable case that the Cancellation Notice was not properly given and, if the Court adjudicates that question in his favour, make representations to the Minister for revocation of the cancellation of the Visa.
Having regard to all these matters, I am satisfied it is necessary in the interests of the administration of justice that an order be made under s.477(2) of the Act; and I propose to make an order to that effect.
Merits of grounds
I have concluded that the applicant has no arguable case that the Cancellation Notice was not given to the applicant, and that the Minister owed the applicant a duty to accord the applicant procedural fairness when considering whether to cancel the Applicant’s Visa under s.501(3A) of the Act. I have also concluded, however, that:
a)if it is assumed that the tasks prescribed by s.501CA(3) of the Act are properly characterised as a “power” and, for that reason, are to be counted as one of the “Minister’s powers under this Act” within the meaning of s.496; and that s.497 of the Act does not apply to the tasks prescribed by s.501CA(3) of the Act, the following conclusions are reasonably arguable:
i)the tasks prescribed by s.501CA(3) of the Act can only be undertaken by the Minister personally or by a person to whom the Minister has delegated the tasks in writing pursuant to s.496 of the Act;
ii)given the Departmental Officer had not been delegated the tasks prescribed by s.501CA(3) of the Act, the Cancellation Notice cannot be said to have been validly given by the Minister and, thus, is of no effect; and
iii)the Minister is liable to a writ of mandamus requiring him to give a notice under s.501CA(3) in relation to the cancellation of the Applicant’s Visa; and
b)the following conclusions are also reasonably arguable:
i)the tasks prescribed by s.501CA(3) of the Act are properly characterised as a “power” and, for that reason, are to be counted as one of the “Minister’s powers under this Act” within the meaning of s.496 of the Act;
ii)s.497 of the Act does not apply to the tasks prescribed by s.501CA(3) of the Act;
iii)delegating the power to cancel a visa does not implicitly carry with it the delegation of the tasks prescribed by s.501CA of the Act; and
c)there is nothing in the material before me to suggest that the Departmental Officer acted as agent for the Minister in giving the Cancellation Notice.
It only remains to consider whether these conclusions are not only reasonably arguable, but also correct. In my opinion, the conclusions are correct for the reasons I have already given for concluding they are reasonably arguable.
Conclusion and disposition
The consequence of my conclusions is that the Cancellation Notice is not a notice that was given in accordance with s.501CA(3) of the Act. That means there was in law no notice given to the applicant under s.501CA(3) of the decision to cancel the Applicant’s Visa, and that there remains unperformed the obligation specified in s.501CA(3) of the Act that accrued when the Applicant’s Visa was cancelled on 16 February 2016.
In addition to making an order under s.477(2) of the Act I propose to make a declaration that the Cancellation Notice was not given by the Minister as required by s.501CA(3) of the Act, and order that the Minister do the matters and things s.501CA(3) requires the Minister to do in relation to the applicant.
I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 20 December 2017
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