BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs

[2024] HCATrans 57

[2024] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M44 of 2024

B e t w e e n -

BIF23

Appellant

and

MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent

GORDON A-CJ
EDELMAN J
STEWARD J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 3 SEPTEMBER 2024, AT 9.59 AM

Copyright in the High Court of Australia

MR N.M. WOOD, SC:   May it please the Court, I appear with MS E.A.M. BRUMBY for the appellant.  (instructed by Victoria Legal Aid)

MR G.A. HILL, SC:   Your Honours, I appear with MR J.A. BARRINGTON for the respondent.  (instructed by Sparke Helmore Lawyers)

GORDON A‑CJ:   Thank you, Mr Hill.  Mr Wood.

MR WOOD:   Two housekeeping matters, your Honours.  First of all, we move on the application, the interlocutory application, to amend the title of the proceeding to reflect the order corrected by the Federal Court to name the appellant as being BIF by his litigation guardian, the Public Advocate. 

GORDON A-CJ:   You will have that order.

MR WOOD:   Thank you, your Honours.  Secondly, an extremely minor matter, but just picking up in terms of our oral outline, paragraph 8, the final line, there is an errant reference to “BDS20 majority at [55]”.  The intention was to refer to the Full Court below.  That is, in BIF at paragraph 55; so, it should say BIF23 at 55.  Where it then says “cf. Rares J”, of course, that is Justice Rares in BDS20.

Your Honours, the appeal involves three questions of statutory construction. First, the meaning of the phrase “as soon as practicable” in section 501CA(3) of the Migration Act.  Secondly, the related question of whether the application of that expression or that test is a question of jurisdictional fact or does the question of “as soon as practicable” turn only on the evidence before the Minister and to be decided by the Minister, subject to conventional constraints like irrationality.  Together, those questions give rise to ground 1.

The third question is a separate pathway, it is ground 2, and the third question is whether the Migration Act exhibits a contrary intention to the application of the default rule in section 33(1) of the Acts Interpretation Act.  Relevantly, that where an Act imposes a duty, then the function on duty must be performed from time to time as occasion requires.  As we have said in our outline, there are three principles of interpretation that bear on the resolution of each of those three questions.  None of those principles I take, really, to be in issue, but I will exploring their application and their implications in this context. 

The first is the requirement to adopt a purposive approach to the construction of section 501CA(3), as reflected in the Acts Interpretation Act in section 15AA, to the extent necessary as explained by the common law.  Secondly, the principle of legality, and in particular the proposition that it is “highly improbable” that Parliament would depart from the general system of law by establishing a scheme that, we say on the Minister’s construction, would deny to a recognised category of persons, being persons who lack relevant decision‑making capacity, a meaningful opportunity to make representations on revocation.

The third principle we identify is the attribution of a legislative intention to produce a consequence that appears to be absurd, and so forth, is to be avoided unless the text is intractable.  We are conscious that one of the Minister’s submissions is that the text is intractable, and I will come to that in due course.  We say that applying these three principles of interpretation, the Minister’s and, indeed, the Full Court’s construction of 501CA(3) is unattractive, and we say that it is incorrect.

I propose to work through the three questions of construction in order.  The first, the meaning of the expression “as soon as practicable” in 501CA(3).  The Minister’s and the Full Court’s construction is, essentially, this, as we understand it:  as soon as the physical action of giving and inviting, as explained by this Court in EFX17, can be performed by the Minister then it must be performed.  That is so even if the performance of the physical action of giving and inviting would be entirely futile, because the recipient is at that point in time incapable of acting on the notice or invitation.  Of course, we hasten to add that no part of our case involves a frustration, in some fundamental sense, of compliance with a duty in 501CA, because our case all turns on the time at which a notice and invitation is issued.

The existence of the well‑recognised jurisdiction of the courts to make an order – effectively, to appoint a guardian – supplemented, and in reality, largely – not displaced, but generally it is relied on these days the specialist tribunals, which are given statutory powers to make guardianship orders.  Even the Minister could make an application for such an order to the court, or to a tribunal, as the case required.  So, no part of our case involved the proposition that the discharge of the duties ever frustrated.  The question is just:  when is the duty performed?

Let us quickly test the Minister’s construction against the three principles that I identified a moment ago.  First, purpose.  We say, self‑evidently, and is apparent from the text of the provision without even needing to have recourse to context and history, it is the purpose of the duty in 501CA(3) to ensure that every person whose visa has been cancelled under 501(3A) has a reasonable and meaningful, albeit time‑limited, opportunity to seek revocation of the cancellation of the visa.

To the extent required, that is supported by case law, certainly of the Federal Court.  I will not take the Court to this case for the moment, but in our submissions at paragraph 9 we cite the proposition of the majority in BDS20 – that is Justices Banks‑Smith and Jackson.  BDS20 happens to be at volume 5, tab 22, paragraph 94, but I do not need the Court to turn it up unless it wishes to.  The proposition that their Honours put is that:

A particular purpose of s 501CA(3) is to ensure that the opportunity of the person to persuade the Minister is a meaningful one.

GORDON AC‑J:   Can I ask a prior question.  Is the purpose to be drawn from the provision and the regulation in the context where, as I understand it, mandatory cancellation cannot arise in respect of somebody who is found not to be criminally responsible because of mental incapacity in the criminal law?  That is, mandatory cancellation can only take into account the first three limbs of substantial criminal record, it cannot take in the subsequence two limbs.

MR WOOD:   Mandatory cancellation arises in the circumstances described in the Act.  Bear with me a moment, your Honour.

GORDON AC‑J:   So, if one goes to 501, and one goes to “substantial criminal record”, one is limited to paragraph (7)(a), (b) and (c) by (3A), not (d) and (e).  And (d) and (e) are the ones which address incapacity at the time of trial.

MR WOOD:   The one qualification I would give to that, your Honour, is that if one goes to 501(3A), there are two categories where the Minister is obliged to cancel a visa.  The first is that in (3A)(a):

the Minister is satisfied that the person does not pass the character test because of the operation of:

(i)paragraph (6)(a) . . . on the basis of paragraph (7)(a), (b) or (c) –

Those are the paragraphs that your Honour just referred me to.

GORDON AC‑J:   Yes.

MR WOOD:   The second is:

(ii)paragraph (6)(e) (sexually based offences involving a child) –

which is set out, of course, in (6)(e).  If one goes to (6)(e), that says:

a court in Australia or a foreign country has:

(i)convicted the person –

of the relevant offence, or:

(ii)found the person guilty . . . or found a charge . . . proved . . . even if the person was discharged without a conviction –

GORDON AC‑J:   None of those provisions would pick up somebody who was found, would they, to have been incapacitated, either by way of insanity or otherwise, for the offence?

MR WOOD:   I think that may be so.  In response to that, your Honour, I would make the point that one should not assume an equivalence between insanity ‑ ‑ ‑

GORDON AC‑J:   No, no.  That is not the point.  The point is that it seems as though it is carved out of at least the first limb of (3A)(a), subparagraphs (7)(d) and (e).  Maybe I am wrong about this, but anyway ‑ ‑ ‑

MR WOOD:   It is certainly true that, in terms, a substantial criminal record as defined disjunctively in (e) of (7) is not enough.  That is true.

Maybe I am missing the point, but certainly a person might not be insane such that they are acquitted on the grounds of unsoundness of minor insanity but nevertheless not have decision‑making capacity in order to make a decision with respect to the immigration status, which, of course, is the issue here.

STEWARD J:   Mr Wood, I take it is common ground that your client lacked legal capacity at the time he was served with the notice.

MR WOOD:   Yes, I think there was a finding to that effect in the Federal Circuit Court judgment.

STEWARD J:   Is it possible to read a reference to the word “person” in 501CA(3) as being necessarily a reference to a person with legal capacity, namely a person who can take an efficacious step at law representations to the Minister?

MR WOOD:   Yes, I think that would be possible.  It would represent, I think, a different pathway to the same conclusion.

STEWARD J:   It would also include, obviously, a guardian properly appointed at law.

MR WOOD:   I think, if I understand your Honour’s point, that that would represent, functionally, an alternative pathway to the very same conclusion, because it could ‑ ‑ ‑

STEWARD J:   You know more about this Act than I do, as we all know.  Is there something in this Act that would be a barrier to that kind of construction?

MR WOOD:   No.  We do make the point that in various sections of the Act there are references to – I am not going to get the language precise here, but effectively – lacking capacity, or indeed being a minor.  In various parts of the Act, the Parliament has recognised this possibility and has written rules in respect of it.  If one goes to 48 – let me call up the relevant ‑ ‑ ‑

STEWARD J:   This is in the regulations?

MR WOOD:   No, of the Act.

STEWARD J:   Of the Act.

MR WOOD:   If one goes to volume 1 of the bundle of authorities, we have given your Honours some provisions, not the whole Act – no doubt your Honours have the whole Act if you need it – but we have given you in particular section 48 of the Act.  So, this is an example.  It is at page 11 of volume 1 of the bundle, and your Honour can see that 48 is concerned with where a non‑citizen has been refused a visa or a visa cancelled, they can:

only apply for particular visas –

subject to the Minister lifting the bar.  Section 48(1) writes a rule, and then if we go to (1A), at page 12 of the book, it says:

A non‑citizen in the migration zone who:

(a)     does not hold a substantive visa; and

(b)after last entering Australia, was refused a visa . . . for which an application had been made on the non‑citizen’s behalf –

Your Honours might highlight that.  Then it says:

whether or not –

relevantly:

(ii)the non‑citizen knew about, or understood the nature of, the application due to any mental impairment; or –

disjunctively:

(iii)the non‑citizen knew about, or understood the nature of, the application due to the fact that the non‑citizen was . . . a minor –

One has a corresponding provision in 501E, that we have referred to in writing, and one finds that at page 33 of the bundle, which, again in subsection (1) ‑ ‑ ‑

GORDON A-CJ:   I think we are all working off a ‑ ‑ ‑

MR WOOD:   Of the full Act?

GORDON A-CJ:   At least the relevant bits.

MR WOOD:   I will do the same then.  It is easier for me to do that too, your Honours.  If one goes to 501E – I am looking at a version that was enforced at the time that notice was given, so on that version it is at page 361.  In any event, subsection (1) says:

A person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf . . . if –

and so forth.  And (1A) says:

In relation to the Minister’s decision to refuse to grant a visa to the person, as mentioned in paragraph (1)(a), it does not matter whether:

(a)the application for the visa was made on the person’s behalf; or

(b)the person knew about, or understood the nature of, the application –

and so forth.  We say in various parts of the Act there is a recognition that some people are unable to exercise a right that the Act gives them.  In particular, a right to make an application for a visa recognises that ‑ ‑ ‑

BEECH‑JONES J:   Does that not work against you, Mr Wood, that they did not make the same provision in 501CA?

MR WOOD:   It does not, your Honour, no.  We just say that these provisions are concerned with refusals and so forth, and consequences, and they say that a particular role is written where a person’s visa is refused, for example, even if the application for the visa was made on the person’s behalf.  What the Act is therefore doing is accepting that the premise that rights under the Act are not always exercised – or able to be exercised – by the person who gets the visa.  Then you have a rule written about consequences of refusal and so forth.

Here, we say, the same premise would underlie 501CA, just as the provision of the Act that speaks of applying for a visa does not in turn say, and minors and persons who lack capacity cannot do this.  It just operates on the premise that only a person with capacity can actually exercise the right to apply for the visa in the relevant ‑ ‑ ‑

STEWARD J:   Can I ask you a related question?  If a person who lacks capacity at law – in the sense the law understands that term – sought to make representations under 501CA, would they be legally effective?

MR WOOD:   No – that is a key part of our argument – they would not.

STEWARD J:   In the same way that someone sought to take a step in litigation without capacity.

MR WOOD:   Yes.  I will take the Court to a couple of cases in due course.  Soondur we have referred to in writing.  I did not propose to walk the Court through it, but in Soondur the court accepted – the Full Court, that is – that a person who was a minor with a lack of capacity.  So, perhaps not a 17‑year‑old, but a person who lacked capacity could not apply for a visa.  It was because they could not make an application for a visa that particular provisions of the rules that gave consequence to refusal, and so forth, did not.

Woolley, which I will come to in a moment, walk through – every member of the Court, as we read it, endorsed the proposition, albeit in considering an argument about the constitutional validity of detention of children – accepted an argument that at least some minors – minors who lacked capacity – could not lawfully exercise a right that the Act gave them, which is a right to request to be removed under section 198(1) of the Act, on the premise that they lacked capacity to make a decision about that consequential act, but the Court said a parent can do it on their behalf.

We say there is no reason to think that the operative principle not expressly stated in 198(1), not expressly stated in section something or other in the early part of the Act about applying for a visa – I will check that section in a moment ‑ ‑ ‑

GORDON A-CJ:   Section 36.

MR WOOD:   Not expressly stated in 501CA that the unwritten assumption reflecting well‑recognised common law is that some people do not have the capacity to exercise certain rights or to make decisions about whether to exercise certain rights.  One of the things I wanted to say, your Honour, about the point about, what if a representation is in fact purportedly made, is one of the flaws in the Minister’s argument, in this respect, is to assume that the making of a representation in fact is of benefit to the person.

That is an unnuanced proposition.  Of course, a representation can be of benefit to a person if the Minister is persuaded to revoke the cancellation, but it is also apt to produce a significant disbenefit to the person because, as this Court explained in Falzon, the making of a representation under 501CA, if valid, is apt to prolong the person’s immigration detention, when one looks at 198(2)(a) and 198(2)(b) of the Act. 

Whether or not, in any particular circumstances, it is a wise or unwise, good or bad, decision to make a representation on revocation is a question affected by a multiplicity of factors.  What are the prospects of persuading the Minister to revoke?  How bad is it in your home country?  How long might your detention be prolonged?  This is a meaningful decision to be made by a person with capacity to make it.  There is no reason to suppose that the Parliament has done anything other, in 501CA, than operate on the assumption that only a person with capacity to make that decision can exercise the right to make a representation; the person itself or their guardian.

STEWARD J:   Can I ask just one more question and then I will keep quiet?  In this territory, do you say there is a legal distinction between the position of your client, who lacks all capacity, and the person who the Court addressed in EFX17?  That is, a person who has an impaired potential understanding of the process.

MR WOOD:   Can your Honour put the second limb of that to me again to make sure I understand?

STEWARD J:   In this territory, do you think there is a legal distinction, for the purposes of 501CA, between a person who is invited to make a representation who has no legal capacity, as distinct from someone who is invited and has impaired understanding of the process, as was the case in EFX17.

MR WOOD:   Absolutely.  I am going to come to EFX17 in a moment.  We understand why the Minister relies on it.  We do not say it is irrelevant to understanding this case, it says some interesting things.  We do not dispute the conclusions of this Court about what “giving” and “inviting” means.  I am going to go to EFX17 in a moment, but fundamentally, the argument was completely different.  There was no finding about a lack of decision‑making capacity and there was no evidence that could possibly have supported that conclusion; no argument was made on the basis of it. 

When you look at the evidence – and I will come to it in a moment – the highest the evidence rose about that fellow’s capacity in the sense of capacity to make decisions was that historically he had suffered from schizophrenia, but at the time that the notice was issued to him, he did not suffer from any unsoundness of the mind.  So, it is unsurprising that there had not been an argument made about the lack of legal decision‑making capacity, nor was there argument made about “as soon as practicable” or anything of the like.

EDELMAN J:   Do you accept that under 501CA(3), a person can make representations by an agent?

MR WOOD:   Yes.

EDELMAN J:   And do you accept that a person may lack capacity to make representations but may still have capacity to appoint someone as their agent?  In other words, they may not be able to make particular decisions, but they may still have a capacity to decide that they wish someone to make decisions on their behalf.

MR WOOD:   The difficulty with that, your Honour, is that what, if any, representations does the agent make?  The agent would act on the principal’s instruction.  They do not make it up.  So, whilst theoretically one might understand the distinction and say, maybe a person has a capacity to appoint an agent, but if they do not have the capacity to decide whether to make representations or indeed, if so, what representations to make, then the agent is not clothed with the authority that has to stem from the principal about what to say.

Now, of course, in many cases a client might rely on their lawyer for the lawyer’s legal advice as to what the best representations to make are.  You might have a VLA acting for an individual and VLA might draft a submission where all sorts of things are said, but their authority to present that as their client’s or the principal’s representation stems from the principal.  The principal cannot say, I want a representation to be made, or, I am content with this or that or the other representation being made, then the agent is unable to make the representation on their client’s behalf.

But, yes, absolutely accept that an agent can make a representation wearing the hat of the principal, just as a guardian can make a representation, in a sense, standing in the shoes of the principal by virtue of statutory protective jurisdiction or the court’s protective jurisdiction.

GORDON A-CJ:   Can I just bring you back to the question of construction – which is where we sort of started, at least – in terms of the purpose of the provision.  Section 501CA is referring to a decision made under 501(3A).  Do you accept that under 501(3A) it is not possible for what might be described as mandatory cancellation in respect of people who are set out and referred to by reference to the definition of “substantial criminal record” in (e) and (f) of subsection (7) of that section?

MR WOOD:   Unless they otherwise fall into ‑ ‑ ‑

GORDON A-CJ:   Well, they could not be, as I understand it, because unless it falls within ‑ ‑ ‑

MR WOOD:   Subparagraph (6)(e).

GORDON A-CJ:   Well, subparagraph (e) is conviction or found guilty without conviction.

MR WOOD:   Yes.  I do not resist ‑ ‑ ‑

GORDON A-CJ:   So that, in a sense, if you have someone who is within those provisions, i.e., someone who has been found acquitted:

on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility –

or has:

been found . . . not fit to plead –

in the general terms, they are not able to be caught by this section.

MR WOOD:   Yes, subject to the fact that it turns on the Minister’s state of satisfaction at the time that decision is made, and of course that there can be an evolution in ‑ ‑ ‑

GORDON A-CJ:   I accept that, but that is the context.  So, at least at that point, the Act has recognised that on grounds of insanity or unfitness to plead, this provision does not have an operation.

MR WOOD:   Subject to the caveats I have mentioned, yes, I accept that.

GORDON A-CJ:   Then, when one comes to the actual service of the notice, as I understand it, the purpose of that is procedural fairness.

MR WOOD:   Undoubtedly.  I mean, there is reference in – I cannot recall if it is the Full Court or BDS20 – I will check – suggesting that the purpose of 501CA is to ensure swift removal, which is a somewhat perverse reading of 501CA.  We say the purpose is to provide fairness after the fact.

The community is protected by the mandatory cancellation while the person is in prison.  Then Parliament said that we are not doing that without affording fairness; we give fairness after the fact.  And, of course, the cancellation takes place in circumstances where no discretionary matters are considered.  The only question is do you fail a relevant limb on the character test that the Minister or the delegate under 501(3A) is not thinking – cannot think about – whether there might be another reason not to cancel.  That is all postponed to the 501CA stage, and the scheme operates on the premise that the person who receives the notice, who is the cancelee, is able to make representations on those matters.

GORDON A‑CJ:   And so, is the point that is sought to be made nothing more than that the purpose of the provision is frustrated if the person lacks mental capacity to exercise or take advantage of that procedural fairness?

MR WOOD:   Indeed, indeed.  One is always wary of picking extreme or slightly pat examples, but to be clear, the Minister’s constructional – let us forget about question 2 for a minute, the jurisdictional fact question.  If the Minister knew ‑ ‑ ‑ 

GORDON A‑CJ:   We are not talking about knowledge here, we are talking about lack of knowledge, though.  I mean, we know from EFX17, which adopts the reasoning of Justice Logan and the Full Court, that knowledge is in a different category; that it is knowledge by the Minister of mental incapacity.

MR WOOD:   Well, one has to be careful about EFX17 – I will come back to it in due course, but the debate there was about “give” and “inviting” in a way that the Minister considers appropriate in the circumstances.  We say that that does not bear on the construction of “as soon as practicable”.  But the Minister’s construction would entail – although my friends decline ever to accept or respond to this point – that, setting aside the jurisdictional fact question, if the Minister knew that the person whose visa was cancelled was in a coma or whatever, the Minister would know that not only could the Minister issue the invitation, but must.

BEECH‑JONES J:   Mr Wood, on your argument, what if no one had ever appointed a guardian to your client?  Someone had just declined to do it.  Would that mean the power would just be forever frustrated?

MR WOOD:   I think – no, there would be no frustration, your Honour, because ultimately the courts and the specialist tribunals have powers to appoint a guardian if satisfied that a person lacks capacity.  Now, if someone had gone to the VCAT and said, please appoint a guardian, and the Tribunal said, we are not going to do that because I am not satisfied, then there would be no issue with the Minister proceeding, because the fact would suggest that the person did have capacity – have I not understood your question?

BEECH‑JONES J:   But say no one ever went to the Tribunal, it did not happen.  Someone might decide this might not be such a good thing for them, and no guardian is appointed.  Even in that extreme case of a coma, which you have raised ‑ ‑ ‑ 

MR WOOD:   Which is extreme.

BEECH‑JONES J:   ‑ ‑ ‑ which is extreme, but not unknown – would the result be that the power, unless and until they acquired some means to meaningfully respond, the invitation would never be issued?

MR WOOD:   It would have been issued in fact, because in that world where no one had gone to the Tribunal, the Minister would not have any reason to think there was a problem, the invitation would be issued.  If no concern is ever raised, the ordinary expectation would be the person would be removed under 198(2A) and (2B) and so forth.  Now, in ‑ ‑ ‑ 

BEECH‑JONES J:   But I think, on your argument, it in fact might have happened, but the actual act would not have occurred under the Act – it would not be in compliance with the provision.

MR WOOD:   There would not have been an invitation.

BEECH‑JONES J:   Yes.  So, that step would remain outstanding.

MR WOOD:   Correct.  There is actually no reason why the ‑ ‑ ‑ 

GORDON A‑CJ:   I thought you had two answers.  I had understood earlier you said anyone could apply to the ‑ ‑ ‑ 

MR WOOD:   They could.

GORDON A‑CJ:   So, the fact of the matter is, if the Minister or somebody was concerned, there would not be a lacuna ‑ ‑ ‑ 

MR WOOD:   There is no lacuna.  Let me – sorry.

GORDON A‑CJ:   Sorry, Mr Wood.  Let us slow this down.  In the sense that under at least the Victorian legislation – and I do not know what the provision is in the other States – anyone can apply, and in fact, sometimes the court makes arrangements for application to be made in order to protect the person.

MR WOOD:   Correct.

GORDON A‑CJ:   So, that is one thing.

MR WOOD:   Yes.

GORDON A‑CJ:   And then the second thing is, is it right – the notice would have been issued, but the argument would be that it would not take effect until that person was in a position to be able to respond to it.  And that may be the appointment of the guardian.

MR WOOD:   That is one possibility.  The other possibility was the factual issue of it would not have been a valid one, and so as soon as the person then has capacity, one issues again.  But I am not sure there is a meaningful difference in terms of the result here.  Your Honour is right, we submit there is certainly no lacuna.

As I understood Justice Beech‑Jones’ question, it was directed to the, well, what if no one notices, and that is why no application is made, what then?  We say, ultimately, the position would be that there had not been a discharge of the duty.  This is not unknown to the law, that there can be circumstances where a duty has not been complied with.  There is also nothing that prevents the duty from being complied with even after removal.  There is nothing that precludes a person who, in the unfortunate circumstance, has been removed in fact from Australia being invited to make representations on revocation.  The representations, if successful, have the consequence of voiding the cancellation, which is, of course, to that person’s benefit.

But, yes, circumstances can be imagined where nothing is picked up, no one makes an application, the ordinary processes play out to everyone’s ignorance of an underlying capacity issue, but we do not see that as in any way undercutting the argument that we have made.

EDELMAN J:   You are assuming as well that the effect of a guardianship order can only be done by a Tribunal or a court, that there is no such thing as a common law power of attorney.

MR WOOD:   No, we do not ‑ ‑ ‑ 

EDELMAN J:   That was your answer to me earlier.  Your answer to me earlier said it was essentially that you cannot have an agency power where the power – the person, the principal granting the power does not understand the operation of the power and its specific application.

MR WOOD:   Perhaps I misunderstood your question.  In my mind, I am distinguishing between agency in a full power of attorney.  So, one might ‑ ‑ ‑ 

EDELMAN J:   A power of attorney is an agency.

MR WOOD:   Yes, but one might appoint an agent but not appoint an agent such that the agent is deciding what submissions to make.  So, a party in legal proceedings might act through their lawyer, but it is the client who is deciding what case is run or, alternatively, a person might appoint an agent that gives that agent scope to make decisions for them about what representations are made.

In terms of identifying the purpose of 501CA to Li, which is volume 4, tab 14, can I take your Honours to paragraph 59 in the reasons of Justices Hayne, Kiefel and Bell ‑ ‑ ‑ 

GORDON A‑CJ:   This is on page 361?

MR WOOD:   Yes. Of course, that case was about legal reasonableness, it is not directly on point, but there is exploration of a useful analogue in the obligation in section 360 of the Migration Act.  At 59, their Honours say that:

A consideration of the purpose for which a duty is imposed –

is useful.  Then at paragraph 60, their Honours note that:

The duty cast on the Tribunal by s 360(1), to invite an applicant for review to appear before it, furnishes an example.

Skipping a sentence, their Honours say:

The purpose of s 360(1) is not difficult to discern. It is to provide an applicant with the opportunity to present evidence and argument relating to the issues –

We say likewise here the purpose of the duty in 501CA(3) is not difficult to discern.  Then at 61, their Honours say that:

Section 360(1) requires that the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case.

Now, pausing here for a moment, of course nothing in the actual text of the duty in 360(1) talks about an invitation being meaningful or “a real chance”.  The obligation is expressed in terms that simply require an invitation to appear to present argument and so forth on the issues arising on the review to be given.  Their Honours were – correctly, we say – accepting, though, that Parliament is to be supposed in light of the purpose of the imposition of the duty to proceed on the basis that the discharge of the duty will involve a meaningful opportunity and a real chance to present the case. 

Then, in the middle of 61, cognisant of course that Li was about reasonableness and exercise of a discretion, their Honours give the example that scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to recover from an incapacity to attend, would not fulfill the duty.  The invitation would be an empty gesture. 

Now, what we say is that the very same analysis could be applied here – again, hiving off the jurisdictional fact question for a moment.  If the Minister with knowledge of a person with an incapacity was to issue an invitation to make representations on revocation, knowing that the applicant – the problem was not capacity to attend physically, the problem was just capacity to make representations at all, that would, we say, manifestly involve an empty gesture.  Yet, it is the construction that the Minister must accept is what would be required in that circumstance; the Minister saying that the capacity is simply irrelevant to the discharge of the duty to invite as soon as practicable, which the Minister says is just about when the physical action of giving and inviting can be performed.

As to the principle of legality, it really converges with purposive interpretation, because the purpose is, as we have explained, to give a reasonable opportunity.  But, of course, the principle of legality itself would strongly prevail against a construction of a provision that would entail that a recognised category of persons would not get the same reasonable, albeit time‑limited, opportunity that persons with capacity do, and likewise ‑ ‑ ‑

EDELMAN J:   Sorry, you have to read paragraph 61 of Li in a bit more of a restrictive sense, because your point is not just that scheduling a hearing on a date which, to the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered from an incapacity to attend, but you would say that it would apply also where a hearing was scheduled on a date which, even without the Tribunal’s knowledge, would not permit the applicant to have sufficiently recovered.

MR WOOD:   I agree with that, and that, your Honour, is our question 2.  Ground 1 depends on two questions.  The first is “as soon as practicable”; the second is, is it jurisdictional fact.  I accept that we need a favourable answer to the second question, and I do not rely on Li in that respect.  As to avoiding absurdity, again, the absurdity, we say, is reasonably obvious, and I think I have made that point.  It would entail the Minister to engage in a farcical process, even if the Minister knew of the capacity problem. 

Now, as we understand the Minister’s submissions, there are three different categories of answer.  The first is the Minister seeks to deny problem, wrongly, we say.  Secondly, the Minister says, EFX17 forecloses your argument.  And the third, finally, we get to analysis of construction, and the Minister says in substance, too bad, the text is intractable – and we work through those answers.  To some extent, the discussion that I have had with your Honours might abbreviate some of the things I was going to say here. 

The first attempt by the Minister is to deny or diminish the problem, and the Minister does so principally by saying, if a representation had been made by or on behalf of the appellant in fact, then that would have been a benefit to the appellant, and the Minister says, and I quote, there would be every reason to treat the representations as having been made within the meaning of the Act.  In other words, having been validly made.

The purport of those submissions, as we understand it, is to say, the problem is not so stark as we suggest because the issuing of a notice to a person who lacks capacity is not pointless – or, at least, not necessarily pointless – because a representation might be made on the person’s behalf in any event.  There is a number of reasons why that analysis does not withstand scrutiny.  The first, I think we have covered in discussions that I have had with your Honours to date, which is that the Act simply does not contemplate representations being made on, quote, behalf of a person, unless the law of agency or guardianship is operating to give it that effect. 

We absolutely accept that the Act operates harmoniously with the law of agency and guardianship, but if there is no agent, and there is no guardian – no agent with power to make the decision for the person, and there is no guardian, then there is no other way that a third party can, quote, make representations on behalf of, in a way that the Act recognises.  That would be a nullity – simply not something contemplated by the Act. 

The second answer is to say that it makes no sense to invoke the notion of a voidable representation.  The scheme of the Act is clear, we submit:  either a representation has been made, or it has not been made; there is no in between.  We say that is clear from the jurisdictional fact in 501CA(4)(a), which invites attention to whether or not representations have been made.  It is also clear from the terms of 198(2A) and (2B) governing removal. 

I have made the point, but we would emphasise it, that it is a mistake for the Minister to assume that the making of a representation necessarily involves a benefit to the person.  It involves a potential benefit.  It also involves a potential disbenefit because of the consequence of a representation in light of the scheme in 198(2B) and (2B) being apt to prolong the immigration detention of a person.  I do not need to take the Court to it but that was discussed in Falzon. 

The fourth answer is that the case law clearly supports the proposition – and this picks up the discussion that I had earlier today – that where a person does not have capacity to make a decision about whether to exercise a right under the Act – be it an application for a visa or here, we say, the making of a representation – the case law clearly supports the proposition that the purported exercise of such a right would not involve the exercise of the right.  I will not go to Soondur, but we have addressed it in writing.  That is about a valid application for a visa.  I will take the Court to Woolley.  If it assists, it is volume 4 of the authorities, tab 16.  The report starts at page 385, or PDF page 78 of volume 4.

As I indicated earlier, the issue in Woolley was whether the detention of children was authorised by the Act.  There was a constitutional argument.  An aspect of the constitutional argument involved three limbs.  The first proposition was that in Lim – that is the High Court case of Lim – the ability of a detainee to bring their detention to an end by requesting removal under 198(1) was significant to the holding of the constitutional validity of the scheme.  That was the first leg of the argument.  The second leg of the argument was that minors with no capacity cannot make a valid request for removal under 198(1).  So, the argument then concluded, therefore, the Act does not lawfully authorise the detention of children.

Every member of the Court, as we read it – some more expressly than others, I accept – accepted the second limb of that argument.  So, they accepted the proposition that at least some minors would lack a decision‑making capacity and therefore could not lawfully request removal under 198(1) of the Act.  But the Court rejected the argument on the basis that, so what, the parent or guardian of the child detained could request removal and therefore there was no disharmony in any relevant respect with the reasoning of the Court in Lim.

Can I briefly take the Court to the relevant paragraphs.  In the judgment of Chief Justice Gleeson, paragraph 30 – it is quite a long paragraph.  The relevant part of paragraph 30 appears on page 16 of the report.  The Court might see, at about 10 lines down, his Honour the Chief Justice says:

Two points may be made. 

It is the first point that his Honour makes that is relevant.  So, he says:

First, not all persons under the age of eighteen would lack the legal capacity –

and he goes on to accept, in substance, that some minors would lack capacity to exercise that right under the Act to request removal under 198(1).  We rely on that.

The longest discussion is that of Justice McHugh.  It takes place between paragraphs 97 through to 104, but perhaps the key paragraphs are paragraphs 103 and 104.  So, 103 is at page 40 of the report – I will not read it out, but your Honours will do so in due course, no doubt.  In particular, at the start of 104, his Honour summarises the position that:

for the purposes of making immigration decisions, where the child lacks the capacity to make a decision, the discretion is vested in the parents or legal guardian –

Justice Gummow reasoned to similar effect at paragraphs 152 to 156 – I will not read it out.  Justice Kirby, at 185, we read as implicitly accepting the same proposition, but perhaps that is not crystal clear – certainly does not reject it.  Likewise, Justice Hayne, at paragraph 226; Justice Callinan at 244; and Justice Heydon at 270, agreeing with Justice Hayne.

So, we say, especially if it is recognised that the making of a representation does not necessarily involve a benefit to the applicant – it involves a potential benefit and a potential disbenefit – there is no reason to conclude that the capacity of a person to make a representation under 501CA(4) is somehow to extend – sorry, that the power to make a valid representation under 501CA(4) is to extend to everyone, even if they lack capacity, which would collide with the reasoning of the High Court in Woolley.

It is for that reason that the Full Court in this case was fundamentally wrong, at paragraph 48 of their judgment, to find that there is no difference between a mere practical issue that may face a person who receives a notice or invitation, such as the person lacking English skills, on the one hand, and, on the other hand, between a person who lacks capacity to exercise the right to make a representation under 501CA.  In the first category, the practical challenge, even if difficult, can be overcome by that person acting on their own motion – appointing a translator and the like – in the second case, it cannot, unless there happens to have been a preexisting power of attorney.

STEWARD J:   It might be a bit more than that.  It might be that because the law does not recognise the efficaciousness of any step taken by a person without legal capacity; it has no quality of law.

MR WOOD:   Indeed.  Which is why we say, coming back to the question that this Court is concerned with:  can the Minister discharge the duty to provide the opportunity to a person who cannot exercise the opportunity?  It is as stark as that, and the Minister says yes, and we say no.  The Minister’s second argument – again, still on question 1 – is to say, well, EFX17 forecloses the argument.  It does not.  Again, there are several reasons why that is so, and I want to spend a little bit of time clarifying the limits of what EFX17 stands for.

Can I say a number of things.  First, and most importantly, as we understand it, as we read it, there was no argument made in EFX17 as to the meaning of “as soon as practicable”, there was no argument to the effect that the notice invitation could not have been given at a particular point in time or had to wait until a guardian was appointed; the court simply did not determine the issue.  Secondly, we accept that the court, at times, refers to the word “capacity”.  It appears to us, in light of the argument being made, that that word is being used in a somewhat looser sense of referring to a person’s ability to understand the content of the notice, rather than their legal capacity to exercise a right or make a decision as to whether or not to exercise a right.

Can I take the Court to EFX17, paragraph 17 in particular. EFX17 is volume 3, tab 13.  If you go to EFX17 at paragraph 17, the Court summarised the essential nature of the arguments that were being made by the respondent, who was the individual – EFX17, in that case – and said that the respondent submissions fell into essentially two categories. It is the first category that is relevant here; the second, concerning delegation, is not relevant. What is recorded here is that:

It was submitted that the Minister did not have regard to the facts that established the respondent’s incapacity to understand the letter and enclosures.  It was submitted that the Minister was required to have regard to the circumstances of incapacity –

Bearing on the “giving” and the “inviting”, and this was to be done:

“in the way the Minister considers appropriate in the circumstances”.

So, the argument focused on, as we understand it, essentially whether the Minister or delegate needed to do more to overcome the particular challenges that that individual faced.  Not to make a decision, not to exercise a right, but to simply understand the document to which he had been given.  If we go again, then, to paragraph 25 of the judgment ‑ ‑ ‑

BEECH‑JONES J:   Sorry, what paragraph was that again, Mr Wood?

MR WOOD:   Paragraph 25.  The Court concludes – and we do not need to quarrel with this – that:

When “giving” and “inviting” bear their ordinary meanings – respectively, of delivering and of requesting formally – with the implication that . . . 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.

Again, the focus in that case being the content of the notice.  Now, the Court on two occasions, including in this paragraph 25, cite with approval an old decision of the Full Court of the Federal Court, a case called Nguyen.  One can see that at footnote (30) on that page of the Commonwealth Law Reports.

Can I briefly diverge to Nguyen.  It is at volume 6 of the authorities, tab 45, page 1279.  Now, in that case, the argument was about the meaning of the word “notification”, and it was being argued on behalf of Nguyen that “notification” required that the notice convey to the recipient an understanding of the content, and in circumstances where the recipient did not speak English but spoke Vietnamese, it was therefore incumbent on the Minister or delegate to provide a translated version of the document.

Justices Tamberlin and Sundberg both said no, for the very same reason.  It is sufficient to go to page 320 of the report in the reasons of Justice Tamberlin.  If one goes there, in the penultimate paragraph, his Honour approves what the primary judge had said, and sets out a quote from the primary judge.  The quote was that:

“In my view, the general effect of statutory provisions like Reg 2A.11 is to require only that the notice be given in English in a sufficiently formal or official way to alert an ordinarily astute recipient who does not understand that language to its potential significance and to the need to have it translated or to obtain advice about it.”

Of course, our case is that the problem is far more fundamental.  It is not about a mere practical challenge that an ordinarily astute recipient could obtain assistance by means of translation or advice, it is about the inability of the recipient to exercise the right under the Act.

EDELMAN J:   Incapacity, you mean.

MR WOOD:   Incapacity, yes.

EDELMAN J:   Let me just put this once more, in a slightly different way.  I think you may need to distinguish between two different types of capacity.  If you are trying to draw a contrast between, on the one hand, inability, and on the other hand, incapacity, then you may also need to distinguish between those cases of incapacity where the person is incapable of appointing someone else to act for them either as their guardian or as their agent, and those cases of incapacity where the person is so incapacitated that they cannot even either get an order or appoint an agent who could act on their behalf.

MR WOOD:   I will reflect on that distinction, your Honour.  I know your Honour has put it to me earlier.  What we say ‑ ‑ ‑ 

EDELMAN J:   There is nothing to prevent a person, for example, who is suffering from severe mental illness from, in a lucid period, obtaining an order from a tribunal appointing somebody as their guardian.

MR WOOD:   Absolutely.  If, in a lucid period, a person has a guardian appointed or makes a power of attorney, then it is no part of our argument to say that somehow that legal state of affairs – I will call it the third party, they are the guardian or the attorney – can make decisions for that person.  I accept that.  That is one particular circumstance that might arise, but where you have a person who at the time they receive the notice is not in a period of lucidity, does not have a guardian appointed, has not previously had one appointed, has not previously appointed an attorney who can make decisions effectively for them and exercise rights for them, then you have that person receive a notice that they cannot act on by their own action.  Now, of course, a white knight might emerge, and in this case, that happened.

EDELMAN J:   No, but you need to say, they cannot act upon it by their own action and they are also sufficiently incapacitated from appointing somebody else, either at common law or by an appointment made by a statutory tribunal to act on their behalf.

MR WOOD:   We say two answers to that.  The first is that we say that if they in a period of non‑lucidity do not have the capacity to make a decision about whether to exercise the right or how to exercise the right under the Act.  It is difficult to see how in that moment of non‑lucidity they could ask the VCAT, for example, to decide ‑ ‑ ‑

EDELMAN J:   It is not difficult at all.  People can have capacity to do some things and no capacity to do others.  The whole of the criminal law relating to insanity is concerned with whether you have capacity to understand the difference between right and wrong, or capacity to engage in an action; there is a difference between the two.

MR WOOD:   I understand that, your Honour, but here the relevant incapacity is the inability to make a decision about whether to make a representation or, if so, what representation to make.  If that is the relevant sense and this person cannot make that decision, it seems anomalous, to my mind, that that person can nevertheless have the Tribunal make an order that someone else would make that decision for them, because that is tantamount to ‑ ‑ ‑

EDELMAN J:   It may be.

MR WOOD:   Yes.  The second answer I would give to your Honour is that, on any view, even if that could occur – so, upon the receipt of the notice, the individual recognises, let us say, or has a sense that they do not have capacity to make a proper decision on what to do in response to the notice – goes to VCAT and says, I would like a guardian appointed – it would remain the case that that guardian, on those sort of facts, had not been appointed by the time they received the notice.

The scheme operates on the premise that you get 28 days – and there are lot of things you have to think – whoever it is, whether it is you or the guardian, has to think about what representations to make, get translations, articulate reasons and all the rest of the it.  If the person when they receive the notice is not at that point in time, because of an incapacity, able to enjoy that right, they are not getting the same right that everyone else has.

GORDON A-CJ:   It does not arise in this case, but the answer may very well be that guardians are appointed on different terms depending upon the issue of the person.

MR WOOD:   Correct.

GORDON A-CJ:   So, the point that Justice Edelman makes is right, it is just a question of looking at the particular facts of a particular case.  For example, you might have a limited appointment of a guardian to deal just with financial matters because they have a propensity to not be able to deal with their financial affairs but can deal with everything else.

MR WOOD:   Precisely, and if you look at the Guardianship Act, I think it is section 34, from memory, that requires the guardianship order to specify the personal matters in relation to which the guardian has powers.

GORDON A-CJ:   And the guardianship order does in this case?

MR WOOD:   Yes.

GORDON A-CJ:   That is, it extends to include all of the matters which you seek to address in this case.

MR WOOD:   Yes, we say that, fairly read, it does in the light of the application that was made.  It extends to deal specifically with the very migration decision for which the order was sought, in express terms.

GORDON A-CJ:   Justice Edelman’s question is right, then; one has to at least identify what the incapacity is, because you might have different types of incapacity for the purposes of your argument.

MR WOOD:   I agree with that.  We say, distinguishing Nguyen and distinguishing the argument that was made in EFX17, the case that we raise concerns a different statutory formula – entirely different question – not about the content of the notice and ability to read it but ability to make a decision and exercise a right.

To the extent that it matters, and it may not, there was also simply no evidence upon which any finding could have been made that EFX17 lacked capacity in the sense that we are speaking of.  If we go to the Federal Court judgment which is at volume 5, tab 28, one finds a couple of paragraphs within the reasons of Justice Greenwood concerning the evidence.  If one starts at paragraph 109, which is at the Federal Court Report page 533, his Honour notes in the second through that paragraph – he says:

Historically –

EFX17:

has been suffering from a schizophrenic illness –

But then if one moves down to paragraph 112 on the next page, his Honour sets out a longish entry made by the person who delivered the notice to him on the day that the notice was delivered.  The notice was delivered on 4 January 2017, that is set out at paragraph 111.  Then, at 112 his Honour sets out this long entry, and we see the third paragraph says this:

Prisoner [appellant] maintained appropriate eye contact and there was no evidence of current active mental illness or gross mood disturbance at the time of the interview.  He reported a history of perceptual disturbance (auditory hallucinations) however stated he does not experience these at present.  Thought processes were organised . . . currently medication compliant –

So, just no foundation in the evidence for an argument of the kind that we are making here.  There was no guardian appointed, there was no litigation guardian appointed, there was no application for a guardian, at least no evidence about any of those matters.  To answer the Minister’s second attempt to answer our argument, our case is not answered by EFX17 whatsoever.

GORDON A-CJ:   Can I ask you to consider one particular passage, then.  In paragraph 21 of the decision of the High Court in EFX17, in the fifth line they say:

Although there might be extreme cases where particular knowledge of the Minister meant that the manner of delivery of the notice that he considered “appropriate in the circumstances” was legally unreasonable, this is not such a case.

And cross‑references back to passages at paragraphs 231 to 246 of Justice Logan’s judgment with which they agree.  Can I ask you to go to 246, please.

MR WOOD:   Paragraph 246?

GORDON A-CJ:   Of Justice Logan’s judgment, and in particular the first sentence.

MR WOOD:   Yes.  We say one, again, reads that by reference to the arguments made.  The argument that was made was about the content of the notice and, relatedly, the manner in which the notice was given, not the timing of the giving of the notice with underlying capacity issues, which is of course our case.  So, 246 says:

in the absence of such knowledge, the Minister is under no obligation to take account of literacy or other comprehension capacity issues.

That has to be understood in light of the argument that was made to that court, and to the High Court, to the trial judge.  At the relevant point in time, the Act ‑ ‑ ‑

BEECH-JONES J:   So, on this argument, the timing of the notice does not take into account the difficulties in comprehension of the recipient?

MR WOOD:   No.

BEECH-JONES J:   The content of the notice does not, but the timing does?

MR WOOD:   Correct.  At that point in time, there has obviously been amendment.  The Parliament amended 501CA no doubt in response to EFX17, but at the relevant point in time, if your Honours have the point in time version of 501CA, in subsection (3) it says:

As soon as practicable after making the original decision, the Minister must:

(a)give the person, in the way the Minister considers appropriate in the circumstances –

That phrase, which has now gone in the current Act, but that does not matter – it was three at the time of EFX17, it was there at the time of the notice in this case – that opened up a discretion to be exercised legally reasonably, and we read one way to understand Justice Logan’s observation there is that the contemplation by the Parliament at this point in time that there might be different “ways” that the notice is given to be considered appropriate by the Minister raises decisional choice, decisional freedom, and there might be extreme circumstances that would suggest that, in discharging the act of giving, that might have to be done in a particular way if the Minister happened to have knowledge.  In DUA16, this Court ‑ ‑ ‑

EDELMAN J:   The short point, at least as I read Justice Logan’s point being picked up by the court in EFX17, is just that “the way that the Minister considers appropriate” is conditioned by a requirement of legal reasonableness, that the performance of a duty can be conditioned by legal reasonableness in exactly the same way as the exercise of a power.

MR WOOD:   Yes.  That is correct.  Your Honours might note that in the Federal Court we ran another ground.  That other ground was based on legal reasonableness.  It was based on some but incomplete information that was on notice to the delegate about my client’s capacity, and we argued that there was sufficient information, effectively, there to put the Minister/delegate on notice of the need to make inquiries.

GORDON A‑CJ:   So, you lost that argument both at the primary judge and the Full Court level?

MR WOOD:   Correct, and we do not press it, that is right.  I am just simply seeking to distinguish two arguments.  The Minister’s third answer is that the text is intractable.  We say that it is not.  The legal meaning of the word “practicable” is sensitive to context and purpose.  We say that where Parliament uses a term that can have different senses or different connotations where it is capable of bearing either or both, obviously the principle of legality would kick in, as well as the purposive principle that we have identified to suggest that that meaning that is textually open that best fulfills Parliament’s evident purpose to give an opportunity to all people who receive a notice should be adopted.

What do we say the expression “as soon as practicable” means here?  We do not suggest that the Minister’s argument is unarguable.  We accept that it is textually open to conclude, as the court below did, that the word “practicable” or “as soon as practicable” picks up only the question of when the physical action of giving and inviting – as explained by this Court in EFX17 – can be executed.  We say that there is quite clearly another, or broader, sense of the expression, which invites attention to whether performing the action – the giving and inviting – at a particular point in time is capable of achieving the actor’s purpose.

Let me unpack that.  Can I start by taking the Court to BDS20, which is volume 5, tab 22, paragraph 53 in the dissenting reasons of Justice Rares.  Paragraph 53 appears at page 54 of the Federal Court Reports.  If you go to paragraph 53, his Honour cites Uebergang and so forth as to the one meaning of “practicable”.  His Honour then cites, at the final line, the Oxford Dictionary.  He says:

defines “practicable” as including, pertinently, “able to be done or put into practice successfully; feasible . . . useful, practicable, effective” –

Accepting that we are not saying that the Minister’s construction is not available on the text, the question is whether there is a broader sense of “practicable” that is textually available, and we say that it is.  It is also apt to note – I will come to the Full Court’s judgment in a moment, but the Full Court itself endorses this Oxford English Dictionary definition of “practicable” and sets it out – I will come to that in a minute – in terms that speak of:

“[a]ble to be done . . . successfully . . . useful, practical, effective”.

The Full Court at paragraph 79 in the present proceeding held that:

The question of when that time expires –

in other words:

when it first becomes practicable to make the communication – may be an evaluative one which could vary depending on the specific facts of the case.

Recognition that when it is “practicable” to issue a notice is evaluative does not sit comfortably with the Minister’s case that focuses only on, as we understand it, realistically, when it is possible to actually send the notice.

BEECH‑JONES J:   But is it not directed to what is “practicable”, and if it is the giving and the inviting, that is what has to be practicable, and that is governed by EFX17.  If it is the provision of a meaningful opportunity to respond, that is your case, is it not?

MR WOOD:   We explain it this way:  an actor has a purpose in performing an action.  We know that the purpose of 501CA is to afford the reasonable opportunity, or at least that is what our position is.  The Minister therefore, conformably with the Act’s singular purpose, has a purpose in issuing the notice.  The issuing of the notice is the action, but the Minister has a purpose in doing so.  So, while it might be possibly at a particular point in time to perform the action, it may not be practicable, we say, in the sense identified by Justice Rares, to perform that action at that time because performing that action at that time could not fulfill the Minister’s purpose.

GORDON AC‑J:   I put it to you in a different way.  If you identify the purpose, which I think you accepted at the outset is to provide procedural fairness to somebody in order for them to seek revocation or cancellation, and it is to provide a meaningful opportunity to respond, then if you read “as reasonably practicable” with the regulation, then it is telling you, please do it as quickly as possible, Minister, because there is a time limit, and you need to ensure that the meaningful opportunity to respond is given sufficient time to do it.

MR WOOD:   Yes.

GORDON AC‑J:   I do not know that that question of construction actually – it may assist, but I do not think it is a complete answer.  It depends upon at what level you identify the purpose of the actual provision at large.  If it is truly to provide procedural fairness, then, as I understand your argument, it is, well, it would frustrate the purpose – that purpose – for it to be sent to somebody who lacks the capacity to meaningfully respond as a matter of fact.

MR WOOD:   Yes.

GORDON AC‑J:   I think that is slightly different, is it not, from the way in which you have just put it in answer to Justice Beech‑Jones?

MR WOOD:   I do not know.  It ‑ ‑ ‑

STEWARD J:   Well, let me put it a different way to you.  It might assist.  Is it really an issue about timing, or is it really an issue about who is a person for the purposes of subsection (3)?

MR WOOD:   I think this comes back to what I said earlier might have been an alternative textual pathway to the same conclusion, which would be that ‑ ‑ ‑

STEWARD J:   Because the Minister, as was the case here, had no knowledge of the legal incapacity of your client, so as to timing, the delegate followed the usual – presumably – departmental procedures.

MR WOOD:   No doubt.

STEWARD J:   And there was no necessary delay because there was no knowledge of incapacity.  So, is your argument really about timing, or is it really about the quality of the person who is capable of receiving and then responding to an invitation?

EDELMAN J:   I think Justice Steward’s question to you is not just a different textual root, it is a textual root that would avoid your second ground of appeal, because I think on any view “person” would be a jurisdictional fact, but “practicable” may not be.

MR WOOD:   I understand that.  I cannot pretend that that is the way we have put the argument to date, but I accept that that is a way to construe the provisions so that the provision achieves the purpose that we have identified.

GORDON AC‑J:   Because if the purpose sits then at a higher level, the purpose is procedural fairness in order to provide a meaningful response.

MR WOOD:   Correct, and in terms of the meaningful response, unpacking that, what it means is that the person who receives the notice is to get the period of time that the regulations allow – which happens to be 28 days, and always was – to think about it and do everything that is required to make the best case.  That is, more precisely, the purpose of the provision, to afford that person that time‑limited opportunity to make their case as to why the cancellation should be undone.

Now, I accept that one textual root which may, on one view, be on more fertile ground of a jurisdictional fact analysis might be the person root.  Another is to speak about the time.  I understand the distinction between the two pathways, but in a sense you are looking at two sides of the coin when you are looking at time and capacity, because the problem is one where at a particular point in time, the person here – the appellant – did not have capacity.  The question of construction is to say, well, is there a pathway through the provision that does not do violence to the statutory language to conclude that a notice cannot be lawfully – the duty cannot be discharged by performing the physical action of giving a document to a person who, at that time, does not have the capacity.

The point we are simply trying to make about “practicable”, to the extent that that provides a pathway, is to say there is no violence to the language.  If I was to perform the action of inviting someone to a party while they slept, I would have performed the action, but it would not have been a practicable time to issue the invitation because they are asleep.  That does no violence.  It is perfectly appropriate use of English language to say it would not be practicable for me to issue an invitation in such circumstances, and the same applies relevantly to the present case.

We say that no part of our argument, to use the Minister’s submissions, involves, quote, shifting the perspective to the recipient, or at least if there is any perspective of the recipient that is relevant here, it is a perspective that the Act has deemed relevant, because we start with identifying what is the purpose of this, and the purpose is to give that person fairness.  It is quite a fundamental procedural right in circumstances where their visa is cancelled without notice to them and without consideration of any discretionary factors.

GORDON A‑CJ:   I notice the time, Mr Wood.  Have you finished ground 1, question 1?

MR WOOD:   I just want to say one short submission about it and then I will move on.  I think I will keep to two hours.  I will be much quicker on the second two questions, I think, your Honours.  But can I just say one thing about AEU ‑ ‑ ‑ 

GORDON A‑CJ:   It is just that we might take our morning break.  That is the reason why I am asking, Mr Wood.

MR WOOD:   Yes.

GORDON A‑CJ:   The Court will adjourn and take a 15‑minute break.

AT 11.15 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

GORDON A-CJ:   Mr Wood.

MR WOOD:   Thank you, your Honour.  I just wanted to wrap up briefly on question 1 by making some submissions on the Minister’s reliance on this Court’s decision in AEU v Fair Work Australia.  Can I say at the outset, of course we accept that if Parliament has here with irresistible clearness made a provision, the effect of which is that the rights and interests of a class of persons within which my client falls may be interfered with without them enjoying the same right that others are given, then so be it.  The Parliament is supreme.  We accept that.  No doubt about that.  But one is looking for language that would be irresistibly clear to that effect, especially in light of what is quite clearly the purpose of the provision here.

Now, the Minister invokes this Court’s in AEU to suggest that we are proceeding in some unprincipled way in the submissions we make on construction.  We say the Minister’s reliance on that case is misconceived.  Can I take the Court to AEU, volume 3, tab 7.  What this Court was considering in AEU was legislation, the effect of which was to, in one sense, deprive the appellant of the fruits of a win in litigation that they had achieved.  The principle on which, relevantly, the AEU relied was set out at paragraph 23.  It was the:

common law principles of interpretation with respect to legislation said to affect the law or pre‑existing rights and obligations with effect from a date prior to the commencement of the legislation.

So, in other words, principles against retrospectivity.  If we go to paragraph 28 of the judgment, the Court records the AEU as making a submission to this effect, that:

the AEU pointed to the unfairness to it of the construction adopted by the Full Court.  The unfairness was . . . the AEU’s loss of the benefit of the judgment it had secured in Lawler and the waste of resources expended in obtaining it.  

What the Court said was that considerations of fairness at that level of particularity are not of great assistance in interpreting the provision.  If one jumps to 29, what the Court says is that:

The AEU’s argument based upon the particular unfairness to it of s 26A is unpersuasive.

because it does not and could not offer:

any comprehensive analysis and weighing of the interests, both public and private, which may have been benefited fairly or disadvantaged unfairly by the validating legislation –

In other words, what was going on was that the AEU was saying, this is just substantively unfair; this legislation, if interpreted in a particular way, deprives us of a win.  That has nothing to do with procedural fairness.  The AEU could have participated in the process of public debate in lobbying the Parliament to make or not to make a particular provision that executed and had that effect.

This case is about procedural fairness.  Should the Act be interpreted one way or the other where, in one way, the effect of the construction would be that processes that happen under the Act – so, the giving of notices and so forth – are futile or not?  In other words, the process would, with respect to a particular class of persons – being persons suffering incapacity – mean that they have no effective opportunity, or should it be construed in a way so that the processes give them that opportunity of persuading the Minister. 

So, the fairness is the opportunity of the person to persuade the decision‑maker.  It is an entirely different proposition.  The law in that area is clear.  It is articulated in cases like Saeed.  Unless Parliament has made irresistibly clear that a person’s rights or interests are apt to be adversely affected without them having an opportunity to comment, then the court would lean in favour of a construction that would enable that.  So, it is a totally different setting, and so the reliance on AEU is inapt.  But, of course, we accept that if the language is intractable, then so be it, because we accept that Parliament is supreme.

Can I move, then, to the second question.  The second question arises in ground 1 if the Court is persuaded on the argument that we have put, which has focused on the word “practicable”, though, of course, I am conscious of the suggestion that the word “person” might be a pathway through understanding the vice with what happened here.  The second question that we have framed is the question of when it is practicable to issue a notice, an invitation, a question of jurisdictional fact.  We frame it that way because we are no longer pressing the argument that the Minister was effectively on notice of the incapacity.

There are numerous reasons, we submit, why the Court would conclude that the question of when it is or was practicable to issue the notice is a question of jurisdictional fact. I make these points, and I can do so reasonably briefly, subject to your Honours’ questions. The first is a simple point of text. Section 501CA(3), in the chapeau, is framed textually in simple terms and not in terms that turn on the formation of a state of mind, opinion or satisfaction of the Minister. It simply says, as a preliminary element of the rule:

As soon as practicable after making the original decision, the Minister must –

It does not use language like “satisfied”, for example, as is used in 501CA(4)(b).  The second point we make is that it makes little sense, reading the provision purposively, to conclude that it is the Minister’s or delegate’s state of mind at the time of issuing the notice that is dispositive.

It makes little sense because, as we have said in writing, by definition, at the time that a person’s visa is mandatorily cancelled under 501(3A), the person is in criminal custody, they are serving their sentence, and there is no reason to suppose, particularly in the circumstances where the Minister, or, indeed, the Commonwealth, typically, would not control the person – they do not detain the person – that the Minister or the Commonwealth would have any understanding, let alone reliable understanding, of the conditions and circumstances of the person that may bear on whether or not they have capacity to make a decision of the relevant kind – in other words, a decision about whether to make a representation on revocation, and if so, what representation to make.

Thirdly, and relatedly, the very nature of the question that we say arises on question 1 about practicability, about capacity, is one that is inherently more suitable for determination by a court.  Superior courts have always had the jurisdiction of determining whether or not a person has capacity to make a decision or to exercise a right.  More recently, Parliament has expanded that jurisdiction to include specialist statutory tribunals such as VCAT to make such assessments. 

But even assuming the Minister were to be blessed by happenstance with the information that would be relevant to making an assessment of whether the person had capacity at the time that the notice is given – which is most doubtful – even then, it would not be readily assumed that it is the Minister who has a dispositive decision to make about the person’s capacity, because there is no reason to suppose that the Parliament thought that the Minister has the appropriate expertise to be making an assessment about whether or not a person does or does not have capacity to exercise a right, that being an expertise that sits far more appropriately with a court and, of course, statutory tribunals, but we are not saying that it is those bodies that make the decisions in terms of the framework of this Act.

Fourth:  if, as the Minister submits, the question is not one of jurisdictional fact, then the unfairness and the absurdity that in part drives the answer that we give to the first question of construction is not satisfactorily resolved.  That is because it is to be supposed that a Minister or delegate in issuing the notice under 501CA(3) would generally assume – and understandably so – in the absence of any specific information suggesting a problem, that a person does have capacity.  So, in the ordinary course, the Minister would simply issue the notice under 501CA(3).

Yet, as the present case illustrates, there will be circumstances where, without criticism of the Minister, the person in fact does suffer from an incapacity.  So, it goes a very short way – and not very far at all – to resolving the concerns that drive the answer to question 1 to say, well, Parliament must be taken to have intended that it is the Minister who is to decide whether the person who has capacity, because there will be many cases – and, of course, this is one – where through no criticism of the Minister, neither the information or perhaps the expertise sits with the Minister, and so, therefore, the Minister proceeds on the assumption that the person is fine, and then the person has no remedy, even though they in fact suffer from the incapacity.  So, if what ‑ ‑ ‑

EDELMAN J: Section 501CA(3) imposes a duty on the Minister, does it not?

MR WOOD:   It does. 

EDELMAN J:   And in performing that duty, if “practicable” picks up as a jurisdictional fact questions of capacity, the Minister would therefore have a duty to inform themselves as to whether any person to whom a notice is sent has capacity. 

MR WOOD:   In a practical sense, even if our analysis is correct, that is so, because the Minister, conscientiously seeking to ensure compliance with the law, would seek to satisfy themselves at a practical level that the person is fine.  But the jurisdictional fact analysis, if it prevails, would mean that if the Minister gets it wrong because they do not have enough information – or for whatever reason – the court is able to say, because only the court can definitively determine the fact. 

EDELMAN J:   So, how practically, then, should the Minister go about complying with their duty?  Would that mean that the Minister would need to have somebody assess every person to whom a notice was going to be sent?  The assessment might be very simple in some cases; it might be more complex in others.

MR WOOD:   It would not be a duty that is enforceable, obviously, because the only question would be of jurisdictional fact, but we accept that a responsible Minister would ‑ ‑ ‑

EDELMAN J:   So, why would not the duty be enforceable?  If the Minister refused to send a notice when the Minister was clearly capable of sending a notice, why would the person not be entitled to compel performance by the Minister of the duty? 

MR WOOD:   It could be enforced, but the question of whether or not it was practicable would be determined only by a court.  The submission I was making to your Honour was trying to make a point that there are cases – although, I do not have the names at hand – that reflect that even where you have a jurisdictional fact, a conscientious administrator would understandably seek to check.

EDELMAN J:   Yes.

MR WOOD:   All I am hesitating about is to say that that checking or inquiry would not itself be an enforceable duty.  Ultimately, the enforceable duty – what would the Minister do?  Well, they would make the obvious inquiry of the institution that is known to detain the person in criminal custody.  The Minister typically acts on the basis of criminal convictions.  I mean, in the typical case, obviously in Australia there will be a record; setting aside extreme circumstances, the Minister will know where the person is detained.  It is self‑evident that prisons have services, including of the kind that was provided by Forensicare here, so it would be a matter of making an inquiry.

The point is that if the Minister gets it wrong, including because they do not have all the information for whatever reason that they might need, because they lack the expertise that the courts have to make the correct call, then the individual has the remedy, which, if they have a tenable basis for bringing their case, they could bring a case ‑ ‑ ‑

GORDON A-CJ:   And at what point in time do you assess that? 

MR WOOD:   Assess what, your Honour?

GORDON A-CJ:   This checking that this person does have the capacity. 

MR WOOD:   One would think that a conscientious Minister would, before issuing the notice, contact the relevant prison authority and see if there was anything to suggest that the person was unable to respond.  That would be a prudent thing to do – not a legally enforceable duty; a prudent thing to do in order to minimise the number of cases that then might end up in the court system.  But, ultimately, it would only be the ultimate fact determined by the court that would be dispositive about whether a person did or did not; it would not be the Minister’s opinion, potentially, on incomplete information and lacking appropriate expertise to make that ultimate judgment – although, of course, conscientiously, they might seek to do so.

GORDON A-CJ:   You talk about the scheme.  So, on your analysis, the decision is made to cancel the visa.  A prudent decision‑maker would then make inquiries about whether or not the person had the capacity to receive a notice asking for representations.

MR WOOD:   Yes.  That would be a prudent thing to do.

GORDON AC‑J:   And all that is going to have to happen within 28 days in order to ensure the person can respond. 

MR WOOD:   No.  You would make the inquiry before you issue the notice.  The 28 days runs from when you receive the notice.  You then have a 28‑day period to make your representations.

GORDON A-CJ:   I am so sorry, I understood the scheme of the Act was the decision was made to cancel it, and then the notice was given – cancel the visa.

MR WOOD:   No, it is “as soon as practicable”.  If one goes to 501CA, the time within which the notice has to be given is simply defined as being, in the chapeau of 501CA(3):

As soon as practicable after making the original decision –

GORDON A‑CJ:   That is my point, so they make the original decision, I am asking, at what point in time are they doing the checking, and you said before the notice is given.

MR WOOD:   That is right.  So, the first event is ‑ ‑ ‑ 

GORDON A‑CJ:   So, we have the cancellation decision already made ‑ ‑ ‑ 

MR WOOD:   Yes, correct.

GORDON A‑CJ:   ‑ ‑ ‑ and then the time for the 28 days to respond to any notice comes from when?

MR WOOD:   It is 28 days from the date that the notice is given, that is what one finds in the regulations.  So, as soon as someone gets the notice, they have a 28‑day window of time to decide what, if any, representations to make, get translations, and all the rest of it.

JAGOT J:   So, here it is at 1 December as opposed to 24 November.

MR WOOD:   That is another thing that might be the product of the deeming provisions – there are deeming provisions about when the person is deemed to have received the notice, but that is right, this person had 28 days from 1 December, which was when ‑ ‑ ‑ 

JAGOT J:   Which is the date they were physically handed the document by the prison.

MR WOOD:   That is right, in this case.  Yes, correct.  In another case when you can send the – dispatch the notice by mail, yes.

JAGOT J:   Yes, of course, it works differently.

MR WOOD:   Yes.  So, the 28 days runs from the date of receipt, so that is the opportunity the person is supposed to get.  Part of our case is that a person will not get that 28 days if they do not have capacity at the time they get the purported notice.  But we accept that a conscientious Minister would, after the first event – which is the cancellation under 501(3)(a) – in making a quick inquiry as to whether or not it might be inutile to issue the notice, receipt of which then triggers the 28‑day period, make a call to check.  It would be prudent but not necessary, not legally required.

JAGOT J:   How does that fit with Justice Gordon’s point that if you have not got legal capacity to plead, as opposed to the kind of thing VCAT deals with, you should not actually – there is an out for you anyway, and you should not have your visa cancelled in the first place, because you should not be within the – you actually cannot plead the offence with which you have been charged, you should not be within (a), (b) or (c) of subsection (7), you should be within other subsections that do not then trigger that power.

MR WOOD:   I will not sort of go back over old ground too much, but I think there are a couple of answers to that is.  One is to say there is no perfect identity between what might be a basis upon which to plead insanity so that you are not competent to be convicted on the one hand, and an incapacity to make decisions on revocation, as indeed the discussion that I had with your Honours earlier shows, the very scheme of the Guardianship Act, and I think the court’s jurisdiction, is to identify the matters in respect of which a person does not have capacity.  So, one might be not insane for a criminal purpose, such that someone might be convicted, including an offence of a kind mentioned in 501(6)(a), (b) and (c), but yet not be able to make a decision in relation to their revocation which, of course, is just the very facts of this case.

EDELMAN J:   It does suggest, then, that the inquiry as to capacity becomes a bit more nuanced, it is not really necessarily going to be satisfied just by a telephone call to the prison.

MR WOOD:   That is true, your Honour, but that is why, as I have been belabouring, whilst it is prudent to make a call, it is not legally required and it is not the end of the story.  So, if it happens to be the case, as can be ‑ ‑ ‑ 

EDELMAN J:   Well, it is legally required.  It may not be legally enforceable as a step towards the duty, performance of the duty, but the legal duty is to do something “as soon as practicable”, which requires the Minister to inform themselves of when it is practicable.

MR WOOD:   I understand the distinction your Honour is pushing, certainly not enforceable.  The ultimate question would be, if the jurisdictional fact question is answered as we submit it should be, the court will say, well, it was or it was not.

BEECH‑JONES J:   Mr Wood, the more common example that you are addressing may be, I think, where you serve a lengthy prison sentence and the incapacity arises after you were convicted.

MR WOOD:   Yes, which I think is a ‑ ‑ ‑ 

BEECH‑JONES J:   The likelihood that prison officials, I can say, will immediately answer an inquiry, without compulsive powers, to give medical details of prisoners might be a bit exaggerated, but that is not your point.

MR WOOD:   Well, indeed, I think, if anything, that supports our case, because, remember, it is Mr Hill’s client that is saying, if we are right on question 1 about practicability – that is the premise here – now we debate who decides.  And Mr Hill is saying it is the Minister, and if someone comes to the court later with evidence from medical experts, let us say, saying this person was in no position – all right.

Now, the very possibility that neither the Minister, in their own records, nor the prison in its own records, would necessarily have reliable information is the very impetus for saying this is why, particularly if one answers question 1 our way, and were ascertaining as a matter of purposive interpretation what Parliament’s intention is, it is the question to be determined by the Court on the best evidence that can be given to a court?  Or is it what is originally before the Minister, or what the Minister might obtain on some calls they might make to the prison?

It is our case, now, none of that means that a prudent and conscientious Minister might not put a call through – they would.  So, in a clear case, if the authorities answer the call and say, no, the man is in a coma, then the Minister’s pathway is clear.  If the prison authorities write back and say he is fine, again, the Minister’s pathway is clear.  If there is doubt, then that is the very reason why it should be a court that is ultimately able to determine it.  The Minister themselves could come to the Court, if the Minister wished to.

STEWARD J:   Could I just clarify a factual matter?  Your client’s convictions are not of the kind that would trigger subparagraphs (e) or (f) of subsection (7)?

MR WOOD:   I do not think so, no.

STEWARD J:   I see, thank you.

MR WOOD:   The final point we would make about the jurisdictional fact question is that it is relevant, we say, that 501CA is a duty imposed as discussed for the purpose of ensuring fairness.  Now, contextually, procedural fairness is one area of administrative law where it is not infrequent that evidence that was not available to the repository of the power – here, the Minister – is relevant to whether or not fairness occurred.

In other words, we are not talking about reason‑based grounds, rationality, or the like, where it is entirely orthodox that such issues are determined by reference to the material before the Minister, but it is entirely orthodox that, when presented with procedural fairness complaints – depending on the nature of the complaint – the court will look at evidence that was not before decision‑makers.

So, two examples of that are mistranslation cases – the Tribunal does not have the benefit of an expert interpreter who can give the court an opinion, the effect of which is that the interpretation that was supplied on the day was woefully inadequate.  Another case is medial incapacity at a hearing.  So, if the Tribunal member does not have any basis to think that the person has a problem, but a medical expert can give a report suggesting that at the time, the person suffered from a profound difficulty in answering a question, then that might be relevant to whether or not fairness occurred.  In other words, we are not looking at fault – we are looking at fact.

GORDON A‑CJ:   I think that is why you were asking questions at the very outset because it may very well be that this reliance on the jurisdictional fact is unnecessary for your argument – in this sense, because if the purpose of the provision is to provide procedural fairness in order to provide a meaningful response, consistent with the Act and Regulations, the fact that it subsequently comes to light as a matter of fact that at the time the person did not have legal capacity, one reads the provision in a way which ensures that the purpose of the provision is achieved, taking into account that subsequent event – i.e., that at the time they did not have capacity, but it was proved later by – you would say, in this case, the approval of the litigation guardian and the orders and reasons given for the appointment.

MR WOOD:   That is right.  What we have sought to do is to fit that argument within the text, and we have focused on the word “practicable” and had the debate that we have had, but I accept that there might be other ways of analysing the provision consistently with the text.

GORDON A‑CJ:   Does that take us to ground 2?

MR WOOD:   It does.  Again, I can be reasonably brief.  Here, again the question is whether the Migration Act evinces a contrary intention to the application of the default principle in 33(1) of the Acts Interpretation Act.

BEECH-JONES J:   Mr Wood, as I read your outline, this ground is predicated on acceptance of your interpretation of the meaning of the word “practicable”.  Is that right?

MR WOOD:   That is right.  I was about to say that.  We accept that, we have though about that because, you see, if “practicable” just means as soon as it is possible to perform the action, then there would be no conceivable foundation upon which one would say that the duty has become re‑enlivened.  So, in a way, when thinking about ground 2, we have proceeded on the common premise about practicability, but a difference between ground 1 and ground 2, at least, is this – that ground 2 does not depend on the jurisdictional fact analysis.

So, let us suppose that we are wrong about jurisdictional fact in question 2, relevant to ground 1, but we are right about practicability, then one can have a circumstance – and this is one – where the Minister realises, after the first invitation is issued, that the first invitation was incapable of providing the person with the opportunity that the Act is designed to give them – the 28‑day period to make representations and so forth.  We say there is no reason to conclude that there is a disapplication or a contrary intention to the ordinary principle that the duty, which the Minister realises after issuing the first notice, needs to be done again in order to provide the opportunity that the Act intends.

Now, we make a couple of points.  I can be reasonably brief about this, but I think they are important to understand the way this ground works.  We submit, we do not understand the Minister to dispute that mandatory cancellation under 501(3A) of the Act cannot be revoked otherwise than in accordance with 501CA.  In other words, one would not readily read the Minister by some implication as having a power to revoke that which is being done under 501(3A) without compliance with the stipulations in 501CA(4).

In other words, 501CA(4) says there are two things that need to happen before it can be revoked:  representations and satisfaction as to character test being passed or another reason to revoke.  So, that is the only – it seems to us – pathway by which ‑ ‑ ‑

GORDON A-CJ:   The Minister could just issue a fresh visa.

MR WOOD:   Yes, but that would not undo the cancellation – so, we have made the point that the Act itself imposes, in various parts, consequences that flow from cancellation even if a fresh visa is given.  Section 501E is an example of that – a person whose visa has been cancelled cannot apply for another visa except for a protection visa, I think.  That is a consequence of cancellation.  So, it is important to appreciate that, therefore, the only pathway to undoing cancellation is under 501CA.

It is somewhat tricky territory.  What we have tried to do, to buttress our argument on ground 2, is to identify that this is not the only circumstance where, in the architecture of the Act, it is apparent that there will be circumstances where the giving of one notice will not be effective to afford the reasonable opportunity that we say Parliament can be taken to have intended to give.

The other circumstance that we offer – which was discussed in some detail by Justice Rares in BDS20 – is the circumstance where a person who has been convicted and sentenced of a relevant offence so as to engage one of the relevant limbs, it follows that at that point in time the Minister cannot be satisfied they pass the character test.  And if, at that point in time, the Minister is also not satisfied there is another reason, then the Minister at that point in time must not revoke the cancellation decision.  But then, after a period of time, a court of criminal appeal overturns the conviction or makes a different sentencing order, the consequence of which is that, retrospectively, the person was never convicted in legal truth or was never sentenced to twelve months or more.

Accepting that 501CA is the only pathway by reference to which the cancellation can be revoked, and accepting that cancellation itself has its own adverse consequences even if a person is given another visa, that gives rise to a startling conclusion that, unless the Minister at that point in time in that circumstance can issue another notice and invitation, the person, we know, now, because of the court outcome, does pass the character test, the Minister did not know at the time of the original decision, but the Minister is disabled from issuing an invitation to the person that gives that person an opportunity to say, I pass the character test and therefore you should now revoke my visa.

That is the second of two – and there might only be two, our case about capacity being the other circumstance – circumstances where there are events that can occur after the notice is issued, the consequence of which is that the person simply has not enjoyed the opportunity that Parliament is to be taken to have given to that person, and leads to absurd, we say, consequences.

So, whereas in the criminal appellate court circumstance the person does not have an opportunity to predict the future and say, maybe my sentence will be overturned, here, the lack of opportunity is even starker and broader, because of course the person lacking capacity does not have the opportunity to make representations about anything, either about the character test, potentially, or the other matters, because they do not have the capacity to make a decision whether to make such a representation or not.

EDELMAN J:   Textually, all this submission requires, does it, is that “notice” in 501CA(3)(a)(i), the singular includes the plural?

MR WOOD:   Yes.  I think that is right, and certainly Justice Rares identified, in the early part of his dissenting reasons in BDS20, two provisions of the Acts Interpretation Act, one about the singular including the plural, and one about reperforming duties as occasion arises.  Now, of course, we accept that if, on the text of the principal Act – here, the Migration Act – the occasion could not arise because, as a matter of construction, the scheme is clear that it can only be done once, then there is a contrary intention to the application of that principle.

BEECH‑JONES J:   But on your argument, given it is a duty, what is the occasion?  What is the triggering occasion?

MR WOOD:   We say that the triggering occasion is the event that, if it is not a jurisdictional fact, makes clear to the Minister that the opportunity that was given by the issuing of the first notice was not, objectively, an opportunity that allowed the person to make an effective representation, because the first limb – the character test – they cannot predict a future criminal court, and yet the criminal court, by quashing the conviction or resentencing, reaches back into the past, and here, in the circumstances of the absence of capacity.

Now, in BDS20, the facts were in a third category.  That may have been a much harder case on the facts, because in BDS20 the ultimate vice was the negligence of the lawyer, the individual, who, for reasons not apparent from the judgment, despite being asked to do so, did not file representations within time.  The Minister was sympathetic initially, and said, all right, I will give you another notice, but then changed their mind, and the debate was, ultimately, could the Minister have issued a second notice?

Now, this Court does not need to decide whether that circumstance – the negligence of the person’s lawyer – is a circumstance that would trigger the re‑enlivenment of the duty, but we say that the capacity is the clearest example that could be given of a circumstance where a fact emerges after the first notice is given, to the mind of the Minister, realises that the opportunity has not been provided, 33(1) kicks in.

STEWARD J:   Do you say that if there is a change of circumstance such as an acquittal on appeal, an applicant has a legally enforceable remedy to force the Minister to make another invitation?

MR WOOD:   That is the effect of our argument, that if the Minister refused to do so, the applicant could come to the court and say, you had a duty, because of 33(1), to issue another invitation.

The Full Court below endorsed the analysis of the majority in BDS20, so can I just say a few things about BDS20, and then I think I am done.  Can I take the Court to BDS20, in volume 5 of the authorities.  Can I take the Court to paragraph 79 within the reasons of Justices Banks‑Smith and Jackson.

STEWARD J:   What tab is this, sorry?

MR WOOD:   It is volume 5 and it is tab 22.

STEWARD J:   Thank you.  And the paragraph, Mr Wood?

MR WOOD:   Paragraph 79.

STEWARD J:   Thank you.

MR WOOD:   We say 79 is really the keystone of the majority’s analysis, but it is affected by a logical fallacy, in our respectful submission.  What the Full Court does in 79 is recognise correctly that the duty is, to use the Full Court’s language:

tethered to a single and clearly identifiable event from which it is calculated:  the making of the original decision.

That is plainly correct.  That is what the text of 501CA says.  But then the Full Court, we submit, errs, because the majority says:

And it is a time that occurs “as soon as” the condition of practicability becomes fulfilled.  If follows that whatever time is “as soon as practicable” . . . it is a time which occurs once.

We say that is not necessarily so.  It is not necessarily so, depending on the construction of the word “practicability”, because if practicability involves a connotation that includes whether the notice was capable of achieving the purpose – being successful or effective, to pick up those words in the Oxford Dictionary – if you accept that it has that connotation, then it is obviously possible for the Minister, after issuing one notice, to realise that the first notice did not provide the opportunity that the Act intends and therefore the duty exists to issue a second notice, and that can run even if it is not a jurisdictional fact, as the Minister realises that that is so.

So, one can have a circumstance where the time from the original event is fixed, the original event being the making of the original decision.  The duty is to give a notice as soon as practicable after that single event.  But, depending on the construction of “practicable”, that duty can fall to be exercised more than once, depending on whether or not after the giving of the notice it is realised that it was or was not practicable at that time.

GORDON A-CJ:   Can you just explain to me how that sits with changed circumstances, which you have just put to us in two ways, i.e., overturning of a criminal conviction, reduction in sentence and change in capacity.

MR WOOD:   Yes, because in our circumstance it is the starkest example because the Minister realises belatedly, as has occurred here, that the appellant did not have capacity at that time to take action on it.  So, it is not a jurisdictional fact, but now the Minister realises, therefore the duty is to give a notice as soon as practicable.  The Minister now realises that it was not practicable to give it in the past.  It was not a jurisdictional fact.  So, the first notice was valid, because we failed on ground 1 on this hypothesis, but now the Minister thinks, well, it was not practicable then, I now realise, but it is practicable now; I give a second notice.  The criminal ‑ ‑ ‑

BEECH-JONES J:   So, is that because it has been rendered impracticable by subsequent events?

MR WOOD:   No, it is because the Minister realises now that it was not practicable then.

BEECH-JONES J:   Well, at the time the original notice was given, the conviction was in force.

MR WOOD:   Sorry, I am dealing at the moment with our facts rather than the conviction.  So, if we deal with the criminal conviction, I think that is the harder case.  At the time that the first notice was issued, the legal truth was that at that time, the person was convicted and sentenced for more than 12 months.  The next event is an appellate disposition that alters the facts in the past.  So, the event is that the Minister now realises, when considering the possibility of issuing a second notice, that even though it was not and could not have been appreciated at the time the first notice was given, the individual clearly does pass the character test objectively and therefore the duty arises to give the notice again so as to enable that person to make that obvious representation that then facilitates the revocation, accepting that 501CA is the only way that you can revoke, and it depends on the making of representations.

JAGOT J:   Is there an analogy at all to fraud cases?  For example ‑ ‑ ‑

MR WOOD:   Which cases, sorry, your Honour?

JAGOT J:   Fraud, as in – is there not authority to some effect that if – say you appoint a migration agent and they are in fact involved in a fraudulent scheme to defraud you of your money, they are the address for service, they are served in what appears to be the ordinary course, but it is all part of a fraud ‑ ‑ ‑

MR WOOD:   It unravels everything.

JAGOT J:   They do not do anything, they never intended to, other than take your money.  Is there authority that fraud undoes everything, including the giving of the notice?

MR WOOD:   I think, certainly, authority discussed in SZFDE talks about fraud unravelling everything.

JAGOT J:   So, it would unravel the giving.  I am just thinking out loud – that unravels the giving of the notice.  As I understand it, it has not actually been given, even though it has been served in – the Minister does not know, that is a given.  The Minister never knows about the fraud ‑ ‑ ‑ 

MR WOOD:   Yes.

JAGOT J:   ‑ ‑ ‑ but it still unravels it, because fraud infects everything, therefore there is no giving, even though that is the notice – I do not know.  I have not looked at these cases recently at all.

MR WOOD:   Yes.  I think it would involve an elaborate – it would certainly involve an extension of the law as I understand it, because there is no basis upon which to suggest there is any fraud here.  Obviously, there is no dishonesty of any player.

There is a case that perhaps I should bring to your Honour’s attention.  There was a Federal Court decision called Parker v Minister for Immigration and Border Protection (2016) 247 FCR 500, where, at paragraphs 60 and 61 in particular, as I read that case, the Full Court was saying, in effect, you cannot impugn the Minister’s decision the first time around under 501CA(4) at the time that it was made, on the basis that, subsequently, after the Minister has made the 501CA(4) decision, the person obtains a better result in a criminal appellate court. So, in other words, that is consistent with the view that one does not criticise the Minister, if you like, based on information not known to the Minister at the time.

We just say, well, the pathway here is just through appreciation of what “practical” means, and the application of 33.  So, we can say, no one is being critical of anyone now – the Minister does not dispute, I do not think, that if the notice could be issued twice, it would be mandatory to issue it twice here, it would be unreasonable not to in the circumstances, now that everyone realises the capacity problem.  So, that is the path by – whether there might be evolution of the law by analogy of the fraud cases, we do not foreclose, but again, we cannot pretend to have argued the point in that way.

The only other reason that the Full Court in BDS20 identified – key reason in the architecture of the reasons why there is a contrary intention to the application of 33(1) is if one goes to 112 – sorry, BDS20, tab 22, volume 5.  If we go to paragraph 113, again with the majority’s reasoning, notably, the majority reject the Minister’s argument made in that case that acceptance of the application of 33(1) the Acts Interpretation Act would:

lead to uncertainty –

Their Honours in the majority expressly agreed:

with Rares J that it would not have that effect.

That is interesting, because despite purporting to embrace BDS20, the Full Court in this case – 55(2) and paragraph 113 – proceed on the premise that uncertainty is the problem that is created by an application of 33(1).  That is certainly not their Honours held in BDS20.  Rather, at paragraph 112, the majority in BDS20 reason on the basis that 198(2B), and perhaps (2A) simply only contemplate in terms that there will be a single invitation.  Again, with respect, we say that is not a very persuasive reasoning, including, perhaps, for the reason that Justice Edelman provided, which is that it is possible to read the singular as the plural, as indeed, section 22 or something like that of the Acts Interpretation Act suggests.

The real answer here is provided by Justice Rares at paragraph 44, in dealing with the supposed relevance of the removal duty in 198(2A) and (2B), and his Honour says – persuasively, we say – that there is no problem at all, because at any point in time, for the purpose of the application of 198(2A) and (2B), there either will or will not have been an invitation given, and the period either will or will not have run out.  And so, we are in the territory of ground 2, where we have lost on ground 1 – the first invite was valid, was not acted on – and the question is, can you issue a second one?  If the person is removed before the second invite is issued, there is no problem – they are removed entirely consistently with 198(2A) or (2B).

If, however, before they are removed, the Minister realises the problem and issues a second invitation, then, again there is no problem – one just looks at 198(2A) and (2B), recognises that an invitation has been given and the period has not expired, or the representations have not been considered yet, so you cannot remove.  So, we just do not perceive there to be a real issue there at all.

Your Honours, that is all I wanted to say.  Thank you for your patience in hearing those submissions.  Perhaps the final point is just to note that the Full Court held at paragraph 102 that there had been no “explanation” for why what is now ground 2 had not been run below.  It is

true that it was new ground in the Full Court – it had not been run the Circuit Court.

That appears to ignore the affidavit of Natalie Young of 18 October 2023 that was filed in the Federal Court, which is in the appellant’s book of further materials at page 94.  In any event, the Minister claims no prejudice in answering the ground below nor here, and so, if the Court were to be satisfied that the Full Court had erred in assessing the argument as having no merit, then the Court would, we submit, allow the appeal.

BEECH‑JONES J:   Was that affidavit read in the Full Court?

MR WOOD:   Yes.  I do not think there is a transcript, but my own notes indicate that I identified it at the start of the hearing.

GORDON A‑CJ:   Thank you, Mr Wood.  Mr Hill.

MR HILL:   Can I check that the Court has our oral outline?

GORDON A-CJ:   We do, I think, Mr Hill.  Thank you.

MR HILL:   Thank you.  Could I start with the text of the provision.  So, a general submission that I will be making is that my submissions and Mr Wood’s submissions almost form a perfect palindrome, because where I start is where he finishes.  My submission is that you start with the text, as informed by this Court’s decision in EFX17, you work out what this Court said about the text and purpose of the provision, then you interpret the word “practicable” in light of its ordinary meaning and in light of what this Court said about section 501CA.  It leads to a very different result.

Could I start, though, with the text, to answer the point raised by Justice Steward.  If the Court will forgive me, I will just bring up the text.  Your Honours asked, what does the word “person” mean in subsection (3)?  My submission is, if your Honour goes back to subsection (1), does your Honour see how 501CA(1) says:

This section applies if the Minister makes a decision . . . under subsection 501(3A) . . . to cancel a visa that has been granted to a person.

Then subsection (3) talks about giving “the person” notice.  In my submission, the section operates on the fact of a cancellation of “a” person’s visa and the notice must be given to that person.  There is no room, in my submission, to then carve out from the category of “the” person whose visa has been cancelled, a person who lacks legal capacity.

STEWARD J:   Say that there are cases where the same word can bear a different meaning within an Act, and also within a singular provision.

MR HILL:   It can.  In my submission, this is not one of those cases, because, in my submission, this is an entirely closed loop of the people who must be given notice are the people whose visa are being cancelled.  Because otherwise, then the only solution would be you do not give notice to that person, it would not be, you cannot give notice to the person until a guardian is appointed.

STEWARD J:   I should ask you this question as well, given that you also know more about this Act than I do – are there any other provisions of the Act that would foreclose the possible construction of reading the word “person” as referring to a person with capacity or a person who has had a guardian appointed?

MR HILL:   Other than the textual point I have put to you, and then the point that arose in argument that there are some provisions which refer specifically to a person’s capacity – and this one does not – other than those two points, then no.  I am not aware of any provision.

STEWARD J:   Do you want more time?

MR HILL:   I might see how we are going, and then take the question on notice and respond to your Honour at the end, whether we think we need more time.  What I might ask my learned junior to do, he is a very experienced migration lawyer as well, is to give that question ‑ ‑ ‑ 

STEWARD J:   He also knows more about the Act than I do.

MR HILL:   I would not comment on that, your Honour.

GORDON A‑CJ:   Mr Hill, can I just ask you one question about the text, while you are on 501CA(1).

MR HILL:   Yes.

GORDON A‑CJ:   I asked Mr Wood this.  Does it mean that you have to be serving a term of imprisonment for this provision to bite?

MR HILL:   Yes, and ‑ ‑ ‑ 

GORDON A‑CJ:   So, that it excludes someone expressly who has been found not guilty or unable to plead on the grounds of mental capacity.

MR HILL: Yes, exactly. And if I could just mention, without taking the Court to it, what the Court will see is that in the judgment below at paragraphs 134 and 135 there are references in the Sentencing Act (Vic), there is facilities for dealing with people who have a mental illness. The way it arose, just to explain why the court was talking about it – and I will take the Court to this document later – the certified extract of the conviction referred to there being a Forensicare report and a person appearing incoherent, and the submission that was made below is that the very fact of conviction showed that, whatever the appellant’s mental illness at the time, they at least had sufficient capacity that the magistrate did not take advantage of these facilities in the Sentencing Act for dealing with people with mental illness.  So, that is the relevance of those provisions.

GORDON A‑CJ:   So that then begs the question – or that explains the purpose or the context in which this provision operates, it does not address Mr Wood’s point – or the point raised by Justice Beech‑Jones – that you can have a subsequent reduction in capacity.

MR HILL:   It does not, but, yes, certainly the premise of the section is that a person has been convicted, that the person has sufficient mental capacity at that time.  I accept there is the potential for a person’s mental capacity to change over time, and so that then may affect whether they have capacity at the time of notice being given.

EDELMAN J:   Of course, there is a difference between the capacity that you are talking about in terms of conviction and the capacity to appreciate or understand the contents of a notice.

MR HILL:   Yes, your Honour, I accept that.  If your Honours look at our outline in paragraph 1, we say statutory interpretation starts with text, context and purpose.  We start with this Court’s decision in EFX17, because we say it is relevant to all three of those matters.  So, we say it establishes what “give”, “invite” and “in the way that the Minister considers appropriate”, and the decision refers to the purpose of section 501CA and contrasts it with other provisions in the Act.

So, if I could take your Honours to that decision, which is in volume 3 at tab 13, I am not sure if it is still the requirement to give the citation of ‑ ‑ ‑ 

GORDON A‑CJ:   Yes, please.

MR HILL:   Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112.

GORDON A‑CJ:   Thank you.

MR HILL:   What your Honours have seen, around about paragraph 18 and 19 – which should be in the joint book of authorities around about page 299, if that helps your Honours – there is a reference to the argument that was put.  So, I accept, of course, the Court’s reasons must be read in the light of the argument and the factual circumstances.

The person argued, in paragraph 17, that by reason of the circumstances of incapacity, that affected whether the Minister had given the notice, given particulars, and had invited the person in a way that was appropriate in the circumstances.  Then your Honours see, in paragraph 18, that argument was accepted by the Full Court, and – this is now on page 123 of the report – the majority said that the obligation:

to “give” the notice . . . and to “invite” the representations contrasted with mere “service” of documents ‑

Without taking the Court back to the Full Court decision, can I give your Honours some reference, because the facts of EFX17, in my submission, are quite instructive to compare to the facts here.  In some ways, the person here appears to have much less capacity, because we know there has subsequently been a guardianship order applied for and obtained.  On the other hand, as I will be coming to, the person was able to communicate to their social worker they had received a letter; that social worker referred it to Victoria Legal Aid on the day that the notice was received.

The facts that I want to mention and just give your Honours these references, are that in EFX17, the Full Court first – the majority held that the requirement to give notice and invite representations had to be “meaningful”.  I just refer to paragraph 138 for Justice Greenwood and 175 for Justice Rares.  The reason I mention that is that is, I think a large part of the submissions here, that surely this obligation must be meaningful, and that is exactly the argument that the Full Court in EFX17 accepted that was overturned by the High Court.

If I could mention, without labouring, the various factors referred to by Justice Greenwood. They are listed in paragraph 134, and if I could say, in a broad submission, when one looks at the list of conditions: the person was illiterate in any language, they had limited English language skills, they had a schizophrenic condition that was under control. In my submission, it was not a mere practical difficulty that could be overcome. It was, as a practical matter, impossible for that person to respond. And can I just refer ‑ ‑ ‑

GORDON A-CJ:   I do not understand that submission, Mr Hill.  I had understood that that person was unable to comprehend it in English, but they had the capacity to seek a translator.

MR HILL:   I do accept that, your Honour.  But may I refer the Court to these facts that have not been mentioned yet.  The person did not realise that the bundle of papers given to him in prison concerned his visa – your Honours will see that in paragraphs 116 and 118.  At 130 of EFX17 there is a statement that the person in that case:

signed the acknowledgment –

Your Honours have seen how you get a notice of cancellation – he had signed that acknowledgement:

“without any understanding of its contents –

So, I just want to emphasise, he did not realise the bundle of papers given to him concerned a visa cancellation, and did not understand the contents.

EDELMAN J:   But in EFX17, the premise of the argument was that it was a case about understanding and not a case about capacity in the strict sense.

MR HILL:   Yes, I do accept that, your Honour.

EDELMAN J:   That was the way it was argued; that was the way it was decided.  I am not sure what taking us to additional facts that show it was an extremely significant failure to understand does to bridge that gap.

MR HILL:   What I am attempting to do, your Honour – and I will be coming to this – is to say that, taking a purposive construction of a procedural fairness provision like 501CA, if the purpose of a provision at a very high level is to give someone a meaningful opportunity, it is relevant that a person lacks all practical ability to respond as well as a person lacks all legal capacity to respond.  That will be the submission, that if the purpose of the provision is to provide a meaningful opportunity, then it is unlikely that Parliament intended to draw such a sharp distinction between a lack of legal capacity and a complete lack of practical capacity.  That is the reason for mentioning those facts, your Honour.

If I could come back to EFX17 in the High Court, if I could just take your Honours quickly through the Court’s reasoning, starting with paragraph 23, your Honours see that there is a reference to the:

ordinary meanings of the verbs “give” and “invite” –

And at the end of that paragraph, paragraph 23, the Court says:

“give” and “invite” connote only the performance of an act rather than the consequences of that performance –

So, in my submission, equally, the words “give” and “invite” are not about the achievement of the purpose, they are just about the performance of the act.  And this is relevant because, as I will probably say more than once, what has to be done as soon as practicable is give the notice and invite representations, and EFX17 establishes that the thing that must be done as soon as practicable is the performance of the act, not the recipient’s capacity to understand.

Now, just while I have the word “capacity”, I do accept that EFX17 does use the word “capacity”, but I would not be heard saying that somehow forecloses the argument Mr Wood is making today, because, of course, as he rightly points out, the Court has used “capacity” in a much more practical, broader sense.  But in my submission – just to repeat what I have just said to Justice Edelman – it is a distinction that should not be drawn.  If a provision is designed to provide a meaningful opportunity, then there is no reason why Parliament would shut its eyes to the people who lack all practical capacity to respond but pay account to people who lack legal capacity.  That, in my submission, would be ‑ ‑ ‑

STEWARD J:   Save that the law characterises a step taken by a person who lacks legal capacity as having no effect at all.

MR HILL:   I accept that, and I will be dealing with that specifically.  If it is all right with your Honour, I might develop that a little later.

STEWARD J:   Of course, yes.  Please do.

GORDON A‑CJ:   Can I just ask one question, just to identify the scope of the dispute.

MR HILL:   Yes.

GORDON A‑CJ:   Do you accept that if the Minister had knowledge of incapacity, it would be an unreasonable knowledge of the power?

MR HILL:   Your Honour has put your finger right on a very difficult part – and it is probably not the only difficult part of my case.  The only reason that I am in a bind is that the cancellation under 501(3A) is mandatory as soon as the decision‑maker is satisfied of the matters that engage it.  Then there is an obligation to give notice as soon as practicable, and on my construction of “practicable”, it is just the feasibility of giving the notice.  So, although I would love to say to your Honour that the answer is different if the Minister has knowledge, there is no room, textually, that I can see for that.

EDELMAN J:   What about in the repealed words, which were not repealed for the facts of this case?

MR HILL:   What this says – the answer to that is in paragraph 25 of EFX17, if I could come to that, your Honour.  If your Honours have paragraph 25, do you see that, in the middle of that paragraph:

“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.

In my submission, it equally is not concerned with the timing of the request, because the timing is dealt with by the word “practicable”, and “in the way” is dealing only with the method of delivery.  So, it is certainly true that the method of delivery has to be reasonable, but it does not address the timing of when the notice must be given.

BEECH-JONES J:   Just so I am clear about this, Mr Hill, under the repealed provisions, if the Minister had notice of the lack of capacity, that might, you say, affect the content of the notice?

MR HILL:   No, I am sorry ‑ ‑ ‑ 

BEECH-JONES J:   Under the repealed provisions.

MR HILL:   Under the repealed provision, what I am submitting follows from paragraph 25 of this case, EFX17, is that ‑ ‑ ‑ 

BEECH‑JONES J:   The method of delivery.

MR HILL:   ‑ ‑ ‑ “in the way” only goes to the method.  It cannot go to – it does not go to the content, is what EFX17 says.

BEECH-JONES J:   I see.  How would that effect the method – just under repealed provisions, if you had ‑ ‑ ‑ 

MR HILL:   It could be that the Minister might be required to take steps to see if it is possible to find a person who can receive a document on a person’s behalf, if you know the person lacks legal capacity.

STEWARD J:   Or the Minister could make an application for guardianship him‑ or herself.

MR HILL:   Certainly, that is possible as a matter of law.  In my submission, that is really – the bare possibility of that approach is not something that then informs the rest of the scheme, because that would be such an unusual event.  If a person who is proposing to take a step adverse to a person – and I do say that this is a step adverse to a person, because you are notifying them of a visa that has just been cancelled – sorry, actually, I am confusing myself.

The step of notifying them is to their benefit, but you are notifying them of an adverse decision – that it would be unusual, at the very least, having taken a step of cancelling their visa, then, being so solicitous of their interests, that you apply for a guardianship order so you can inform them of that step.  It is more common, I would submit – or, at least, the facts of this case indicate that often people in this situation, there are social workers in the prison who are able to – as happened in this case – safeguard the person’s interests.

EDELMAN J:   It is difficult to read, at paragraph 25 of EFX17, the contrast between “method of delivery and request” and “content” as putting the timing or decision to issue in the box of “content” rather than the box of “method of delivery and request”.

MR HILL:   I understand that. 

EDELMAN J:   Particularly when you read paragraph 25 in light of paragraph 21, to which Justice Gordon drew Mr Wood’s attention.

MR HILL:   No, of course.  I would love to embrace that argument, the textual difficulty I have is that the timing seems to be addressed fully and comprehensively by the obligation to give notice as soon as practicable, and then there is a separate obligation to give the notice in the way the Minister considers appropriate.  It could be that they are overlapping requirements, in which case “practicable” does not extend to an unreasonable exercise of power, but that is obviously not this case, of knowledge.

BEECH‑JONES J:   Sorry, I thought your argument was that practicality is directed towards the practicality of the method of delivery and the request.

MR HILL:   I do say that.

BEECH‑JONES J:   Yes.

MR HILL:   The practicability of giving – I see, so then – I think I have got myself confused here.  We are dealing with a situation that is not this case, and this potential obstacle to taking account of the Minister’s knowledge of a lack of incapacity is the word “practicable”, which, in my view, goes only to the feasibility of giving notice and not anything that goes to the capacity of the person or ability of the person to understand it or respond to it.

BEECH‑JONES J:   Just to pick up what I thought Justice Gordon was arguing, if you had a case where the Minister had knowledge of something that did affect their capacity, and you say, well, that might feed into the method of delivery, for example – does it go to their social worker or maybe a member of their family, or something – practicality operates on the practicality of that method of delivery.

MR HILL:   Yes, that is right, and it must be as soon as practicable.

BEECH‑JONES J:   To do that step.

MR HILL:   To do that step.

EDELMAN J:   But that would still mean that it would be unreasonable to deliver to the person themselves.

MR HILL:   Yes, and that may be the way we get around my issue.  So, I thank Justice Beech‑Jones ‑ ‑ ‑

BEECH‑JONES J:   I am not – do not thank me for anything.  I am just trying to understand it.

MR HILL:   At least for allowing us to progress the argument.  Coming back to what was said in EFX17, I got to paragraph 27.  Just to summarise what is in that paragraph, the Court contrasts 501CA with other provisions where there is an express requirement to inform a person, or:

to “ensure, as far as reasonably practicable, that the applicant understands why it is relevant –

The Court refers to several provisions, including section 57(2)(b) and the provisions listed at the end of that paragraph.  So, that is part of the context, and then paragraph 28 is important, particularly when we come to jurisdictional fact, because ‑ ‑ ‑

GORDON A‑CJ:   What paragraph is this now?

MR HILL:   Paragraph 28:

The approach of the majority of the Full Court was not limited to an implication that the Minister ensure . . . that the recipient understand –

The Court continues:

As explained above, the Full Court reached its conclusions about the respondent’s lack of understanding by considering matters subsequent to the Minister’s decision and matters of which the Minister might not have been aware.

So, I submit that by saying that the Court is saying those matters should not be relevant to 501CA, certainly to whether a notice is given or a representation is invited.  In my submission, it would be odd if “give” and “invite” was limited to information known to the Minister but “practicable” was a jurisdictional fact which took account of all matters known to a court in a later process.  Then the next sentence in paragraph 28 is:

But even to draw a more limited implication from s 501CA(3) in the same terms as the express provisions above would go beyond attributing legal meaning to the statutory text.

That is, in my submission, what happens with my learned friend’s submissions.  They go beyond attributing meaning to statutory text, and rather start with an unjust result in an individual case and work backwards to see:  is there any giving point in the statute to ameliorate that injustice?  In my submission, that also goes beyond attributing legal meaning to the statutory text.  Then the Court continues, in paragraph 28, the approach of the Full Court:

would also require consideration of the extent of the extent of the capacity of a recipient to understand material provided, identification of how limitations could be overcome, and the taking of steps to do so.

This Court has said:

The administrative difficulties that this would introduce would be in tension with the goal expressed . . . that the “measures proposed will ensure that the government can move quickly to take action against noncitizens who pose a risk to the Australian community”.

My learned friend is critical of that reasoning, but it is the reasoning of this Court in EFX17.

GORDON A-CJ:   It may or may not be.  I think in the discussions between Bench and Bar with Mr Wood, it depends at what point you are considering the question, and I riase it in this way.  If you look at it by saying that there is a duty to inquire, that is one pathway.

MR HILL:   Yes.

GORDON A-CJ:   If you reject that construction, and that is one route, the other route to say is, well, if subsequently it is demonstrated as a matter of fact that the person who received the notice lacked the capacity, which is in a sense the case that is being established here, then that is a different form and one does not have the same administrative difficulties that were identified and discussed I think in paragraph 28.

MR HILL:   Except that, your Honour, even to take account of the lack of capacity then raises the points raised by Justice Edelman, that once that is relevant in this case then a responsible administrator must always make inquiries to ensure that you are not giving notice to a person who lacks legal capacity.

GORDON A-CJ:   Well, that is the question, but it may not be that one follows the other.

MR HILL:   My submission, just to be clear about it, is that the administrative difficulties referred to in this case – even if they are not exactly the same, there would be administrative requirements to take steps to ascertain a person’s legal capacity before – in fact, in my submission, it is not even clear at what point.  Because the obligation is as soon as practicable, perhaps you would take steps, having cancelled the person’s visa, to find out whether they have the capacity to understand the notice.  In my submission, that is certainly in tension with “as soon as practicable” as interpreted in its ordinary meaning, and in tension with what the High Court said about the purpose of the provision in this paragraph.

Then in paragraph 29 there is a reference to Li.  We have said this in writing, so I do not need to repeat it.  In paragraph 17, we say the fact that the High Court in EFX17 refers to Li does not mean that there is some freestanding requirement of reasonableness. We would say the key difference between this case and section 360 of the Migration Act is that 360 is a discretion.  As soon as there is a discretion, even if there is also a duty as to whether or not to do something, then it is conditioned by a requirement of legal reasonableness and, because there is a choice as to whether to do it at all, there is choice as to when and how, then of course it would take account here of the person’s capacity to attend.  Whereas we say it is a different form of provision which says a duty to provide notice as soon as practicable does not give the same leeways of choice.  That is why the scope for unreasonableness review is much more confined, we say, than in Li’s Case.

Then the last paragraph I wish to take your Honours to is paragraph 30 of EFX17.  At the top of page 128 of the report, your Honours see that counsel for the respondent – the person referred to several features of section 501CA as supporting the implication that it was necessary to consider the “capacity of a person to understand the notice”, and the circumstances are listed at the top of page 128:

the person is in prison; that the Minister’s decision to revoke a person’s visa is one to which the rules of natural justice do not apply.

Section 501CA:

provides for the first notice of a visa cancellation decision; and that the making of representations is a condition precedent for the Minister to revoke –

The Court says:

these circumstances were accurately described. They emphasise the gravity of the consequences for a person . . . But they do not provide sufficient foundation for the implication, which is contrary to the ordinary meaning of the words of s 501CA(3).

We do embrace that reasoning.  We say it does apply here.  So, I do accept that my learned friend has fastened on a different textual point, the provision which is – I am going to use the word – “practicable”, but my submission is that, given what this Court has said about the meaning of “give” and “invite”, and in a way considered appropriate, it would be odd – given the ordinary meaning of “practicable” – if “practicable” took account of a set of circumstances that this Court has held is not relevant to the meaning of those other words.

As I recall a point which your Honour Justice Beech‑Jones put to my learned friend, does his argument involve a difference between the requirements of content of a notice – because EFX17 deals with that – and the timing of a notice, and I understood my learned friend to say his argument did require that distinction.  So, another way of putting the argument I have just put is there is no reason for that difference to be drawn.  That, in my submission, an understanding of what the purpose – the purpose of 501CA is the same, whether one is interpreting the words “practicable”, “giving” and “invite”, in my submission, the meaning of “practicable” therefore would take account of the same sort of circumstances, or at least would not include a whole range of different circumstances that are not relevant, to whether a notice has been given or whether representation has been invited.  I see the time, does the Court ‑ ‑ ‑

GORDON A-CJ:   Is that an appropriate ‑ ‑ ‑

MR HILL:   It is, your Honours.

GORDON A-CJ:   The Court will adjourn until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

JAGOT J:   Just before you start, Mr Hill.  I raised with Mr Wood the question of whether there was any analogy to the cases on fraud.  One particularly in mind is SFZDE [2007] HCA 35. Is there any equivalence between fraud, which relates to, as it was explained in that case, a fraud on the Tribunal, as you will remember – and that meant that the entire purpose was defeated by reason of the fraud and it unravelled at least to that extent. Then if you look at this provision, 501CA(3):

the Minister must:

(a)     give . . .

(b)     invite –

And if there is a lack of legal capacity as a matter of fact, whether or not the Minister knows about it – because in the other case you do not need to know about the fraud, it just has that effect, in fact it is proved at that date, the date here being 1 December, which I will return to – is there an argument that by analogy to that reasoning, it is just so fundamental that there is no giving or inviting that that has been vitiated?

The relevant fraud being the fraud on the Minister, or the relevant incapacity depriving the Minister of the capacity at all – i.e., impossibility not difficulty – of receiving any representations that would enable for subsection (4) to be enacted.  If I just go to point (2), that would depend on, is it established as a fact that, as at 1 December 2021, this person not merely had schizophrenia but in fact lacked legal capacity.  Is that fact not in dispute?

MR HILL:   The relevant fact is set out in the primary judge’s judgment. 

JAGOT J:   There was a reference, I think, in the submissions of one of the parties to paragraph 85 or 86 of the primary judgment.  It did not seem quite as clear to me as it might –

MR HILL:   The reason I have to be careful, your Honour, is – a comment from Justice Edelman is going to cause me to put a slightly more refined submission than I have been putting, and so perhaps if I say what I am about to submit, and we will say how it effects.

JAGOT J:   I will just note that 86 does say something to the effect:

based on what is now known about the Applicant’s legal decision‑making incapacity at and around the time of the Notice being handed to him on 1 December –

Which does seem to suggest a lack of legal capacity as a finding, not just schizophrenia or difficulty reading or difficulty understanding.

MR HILL:   Yes.  This is in no particular order, but just to pick up some comments that your Honours put to me.  Your Honours have said that it is impossible to receive representations.  That is not quite accurate, of course, because in theory if a person could obtain a guardian in four weeks, it would be possible for them to make representations.  That is why we urge there is no sharp distinction between a mere practical difficulty and a legal incapacity, but to respond more substantively to your Honour ‑ ‑ ‑

EDELMAN J:   Does it have to be done by a guardian, or can it be done by an enduring power of attorney?

MR HILL:   I am sorry, your Honour, if there could be steps taken by someone who is able to represent the person who lacks legal capacity, such as a guardian.  It is not that it is impossible, it is just that if one receives notice of a cancellation and one has to provide representations within four weeks to starting from nothing in place.  It is difficult, as these facts demonstrate.

GORDON A-CJ:   I think the point that is sought to be made, though, is to limit the questionings, in this sense.  That it lacks legal capacity and authority given to somebody else. 

MR HILL:   Yes. 

GORDON A-CJ:   That is the sort of field with which we are concerned.

MR HILL:   Bar to then that itself shows a difficulty of having any hard and fast rule, because it is not just a question of whether someone lacks legal capacity to make representations, it is whether they lack the further legal capacity even to empower someone else to make representations on their behalf.

GORDON A‑CJ:   Not quite, I do not think, in this sense, that you can lack legal capacity, full stop, but you may have – prior to lacking legal capacity – given someone authority.  So, this is dealing with a sphere of people, or a group of people, who lack legal capacity and have not otherwise given authority to anybody.

MR HILL:   Yes.  I accept that, but I am not sure if it is clear in this first answer to Justice Jagot that I am saying, it will be necessary to look at the facts of each case and that there is not, in my submission, a clear, sharp distinction between people who lack legal capacity to make representations – for the point that Justice Gordon has made – and people who face other practical difficulties.

STEWARD J:   Except that the law takes the view that steps taken by a person without legal capacity have no effect.

MR HILL:   I promised your Honour that I would be answering that, and I will be.

STEWARD J:   Okay.

GORDON A‑CJ:   Can we – for the purposes of at least this bit – deal with someone who lacks legal capacity?

MR HILL:   Yes, of course.  Then, the point I wish to make – your Honour referred me to SZFDE (2017) 232 CLR 189 – and we have taken from paragraph 49, where the Court said the fraud on the part of the migration agent stultified the Tribunal proceedings. So, as we understood the facts, what had happened was that people engaged the migration space – I now forget which tribunal it was – had been informed by their agent not to attend the hearing. That action of informing their clients was fraudulent, but it did mean that people did not attend the hearing and their failure to attend the hearing stultified the Tribunal’s ability to engage and let them present an opportunity.

So, my more substantive response to your Honour is that if there is an analogy with a lack of legal capacity, the analogy is that any steps taken by the person lack any legal effect.  In the case of fraud, the fraud procured the client’s failing to attend, and their failure to attend meant that the Tribunal was unable to carry out its statutory task.

My submission is that if, for whatever reason, let us say the fraud related only to whether they attend the hearing, but there were prior steps taken by them – for example, they would have lodged an application to bring the Tribunal proceedings – any fraud that occurred later would not invalidate steps taken before, and that is our submission in this case, that the question is the legal effectiveness only of giving notice.  We say, a person’s lack of legal capacity can only affect their ability to make representations.

BEECH-JONES J:   Mr Hill, what if this situation rebounded?  A migration agent wrote to the Minister and said, I am the person to whom any notice under (3) should be given, and that was fraudulent.  That would vitiate the giving or the invitation, would it not?

MR HILL:   I accept that, your Honour.

JAGOT J:   But then, I mean, fraud is fundamental in the law.  Lack of legal capacity is a distinct legal category which has distinct consequences, it does not mean just difficulty understanding, or any of those things.  It means actual legal incapacity in circumstances where we already have the indication that Justice Gordon has been referred to more than once, that, really, the scheme is not trying to enable visa cancellation for a person who, at the time of sentence, lacks legal capacity.

MR HILL:   I accept that.

JAGOT J:   That is, that they are under those provisions of (7) that make it clear; (7)(e) and (f).

MR HILL:   In my submission, we say that is a factor that favours us, that the legislative scheme is on the basis that people to whom the section applies will have legal capacity, and there is no provision ‑ ‑ ‑

GORDON A‑CJ:   I think there was a question about that, and we are back to purpose.  What is the purpose of the provision?

MR HILL:   Yes.

GORDON A‑CJ:   The purpose of the provision is to enable people to provide or give notice and invite people to make representations for the revocation of the visa cancellation.

MR HILL: I am conscious I keep on putting your Honour off. Why do we not – if I could be allowed to make this – I will come to that – my high level submission is that is to take the purpose of section 501CA(3) to a higher level of generality.

Since I am intent on mentioning what is my oral outline, may I just invite your Honours to read what is in paragraphs 3 and 4, which I will not elaborate, because what your Honours will see is that the scheme of what is in paragraph 3 is, having developed EFX17, the short point is, is there anything in the meaning of the word “practicable” which would change that result?  We say what is “practicable” is the giving and inviting of representations, and it is assessed from the perspective of a person performing the task.  Your Honours see that we cite particularly the Full Court of the Federal Court’s decision in M38/2002 (2003) 131 FCR 346 at 65. It is in the bundle – I do not need to take your Honours to it.

Then, what your Honours see in paragraph 4 are points that I will be developing in ground 2, which is the scheme requires certainty, and we point to particular features, which is the giving of notice then sets a clock ticking for the making of representations, and also sets the period for lawful detention – that if a person does not make representations within a certain period, then an obligation arises to remove them from Australia as soon as practicable.  We say those are features of the statutory scheme that tend against looking to objective facts, matters as to the physical delivery of a notice, not the ability of a recipient to understand it.

Then, finally, to come to the point that Justice Steward has been asking – this is in paragraph 5.  So, of course, we accept that there is a difference – that the law says a lack of legal capacity means that a step taken by a person lacks all legal effect.  But we say, yes, it is that step taken by that person – here, the making of representations.  And we say that explains Soondur’s Case (2002) 122 FCR 578 – your Honours have been referred to that, that is the decision of the Full Court, particularly his Honour Justice Gray.

We say it is because of decisions like that, saying that when a step is taken by a person – the making of an application – that that is why the Act needs a specific provision to overcome that usual position – which it does in the provisions my learned friend refers to – that is, section 48A and then section 501E(1A).  The existence of those provisions, we say, and the lack of any corresponding provision with 501CA is explained by the fact that a lack of legal capacity only affects steps taken by the person, not the prior giving of notice.

STEWARD J:   So, you accept that if he had made a representation, say, on 5 December, assuming he lacked legal capacity on that day, that that step would not have any legal efficaciousness?

MR HILL:   Actually, your Honour has caught me out, I have not been sufficiency precise.  Our submission is, if you look at the oral outline, I have added these words to make clear – at most, the fact the recipient lacks any legal capacity could only affect – so, let us say there is a hard and fast rule that a step taken by a person without legal capacity lacks legal effect, it would mean exactly what your Honours put to me, that submissions actually made in fact on 5 December would not be received.

But then your Honours see in paragraph 6, we say the hypothetical put to me by Justice Steward is actually a reason to read the Act in a different way.  What we have done is referred to a number of cases to say this absolute proposition that an act taken by a person who lacks legal capacity lacks any legal effect is subject to the statutory context.  Generally speaking, we would say, even at common law, these cases suggest that the rule means a step taken by a person without legal capacity often is only unenforceable against the person.  If it is a step that is in the interests, they are often, we say, entitled to retain the benefit of that.  And since – I have had a feeling I may need to persuade your Honours of that, so may I take you to the two cases we have referred to in paragraph 6 of the outline.

GORDON A‑CJ:   Can I ask a factual question.  Can I ask, what is the benefit, here, of a person who does not – who lacks the legal capacity?

MR HILL:   I will address that point at the outset.  So, my learned friend says ‑ ‑ ‑ 

GORDON A‑CJ:   No, I would like to know what you say is the benefit that they were entitled to retain, or even the possibility of a benefit that they would get to retain.

MR HILL:   Yes.  The benefit, we say, is clear.  If they do not make representations, their visa stays cancelled.  If they do make representations within time, they have the benefit of having the potential for the cancellation of their visa to be revoked.  We say that is a clear benefit.  If a person was content with their visa being cancelled, they would ask for removal from Australia.

JAGOT J:   But it is one thing for a person who lacks legal capacity in fact to have made a representation which has a legal consequence, say, and the Minister acting on it.

MR HILL:   Yes.

JAGOT J:   But here, based on the primary judge at 86 and what I understand to be the debate between you, we have a person who, as at 1 December, lacked legal capacity, and because of that, could not make a representation, and did not – in fact, did not make a representation, so there is no – I mean, I am prepared to accept that if there is something beneficial to them that a person happens to have done while they lacked legal capacity, it may well be that they should retain the benefit of it, but that is an entirely different proposition from them not having done something because they legal capacity, to their detriment, and then holding them to that position.  I am still struggling with that and the fraud on the Tribunal.  This would be, in a sense, a lack of capacity disabling the Minister from performing the statutory function.

MR HILL:   Now, I am conscious there are a number of questions I need to answer, and I think I am at least two or three questions behind, so what I might do, if it is all right, is take your Honours to the facts, because the burden of what I am about to put to your Honour is to say judicial review is a review of generally what is known to a person, and the Court’s construction of these provisions would be assisted by seeing how they operate in practice.

So, this is in the respondent’s book of further materials.  If your Honours could turn that up, please.  What I am asking the Court to go to is the affidavit of Natalie Young, which starts at page 22, and I am going to read some paragraphs on page 23, if your Honours have that.

EDELMAN J:   For what purpose?  What is the point that you are taking us ‑ ‑ ‑ 

MR HILL:   The point is, when you look at the facts, just to summarise them, on 1 December when the applicant was handed notice, on the same day, a social worker from Forensicare contacted Victoria Legal Aid to say, this person has received a notice of visa cancellation and I would like you to give them legal advice.  We see the emails, we see references to the Forensicare person saying, I have oral consent from the person to get in touch with you, and a later email from a person saying, I have oral consent to tell you this about a conversation between us.

JAGOT J:   Do you debate paragraph 86 of the primary judge’s – is that what you are going to?

MR HILL:   What we do is we try to give it a more nuanced view, because this is try to pick up the point that Justice Edelman put to me.  Justice Edelman said, it is one thing to say you lack the capacity to make legal decisions for yourself, to make representations, and we say that is the matter that her Honour addresses and that is the matter that is addressed in the VCAT orders.

JAGOT J:   Just put aside the VCAT orders, put aside the issues of difficulty.  I understood issue was joined on a lack of legal capacity, meaning as in law, as in that person is in the same state they would be which means they are not criminally responsible for their acts or, alternatively, they are not fit to plead to a charge against them.  I think what I was – and that is what I understood you were joining issue on, but that that does not have that effect ‑ ‑ ‑ 

MR HILL:   Certainly, I would not accept that the orders made by VCAT necessarily mean that ‑ ‑ ‑ 

JAGOT J:   No, no, I accept that.  I understand that, I am just saying I had understood that the way the submissions were framed, and the arguments were framed, is you were meeting head‑on paragraph 86 of the primary judge, who talks about legal decision‑making incapacity and you were saying that legal capacity, even in its strictest sense – I am looking at paragraphs 5 and 6 of your submissions ‑ ‑ ‑ 

MR HILL:   Of the outline, your Honour?

JAGOT J:   Of your outline, yes.  That is not what it is about.  But you are saying that, actually, lack of legal capacity is not – I just do not know what you are saying now, actually.

MR HILL:   If I could put it this way, with the greatest of respect, I am trying to develop the submission, and unfortunately for me, I do not make it clearly enough, and then in trying to answer other questions I have clearly – so perhaps if I could backtrack, then maybe it will be clearer.

JAGOT J:   Sure.

MR HILL:   What we say is there is certainly a lack of legal capacity in the sense that VCAT has made an order finding the applicant did not have legal capacity to take the actions set out in that order, and those actions are bringing legal proceedings, so we do accept that.  And we do accept that the primary judge inferred from that, that in that sense, that legal capacity the applicant did not have at 1 December – even though, of course, the Tribunal would have been considering his legal capacity to a slightly later point in time.

What I am disputing, inexpertly, is I am trying to say there is a lesser form of legal capacity, which, on the evidence, the applicant did have – which was enough of a legal capacity to say, I ask someone else to take care of this for me.  So, I do not have capacity to make the decisions myself; I do have capacity to ask other people to look after it.  And that is similar to what Justice Edelman, I think, put it ‑ ‑ ‑

EDELMAN J:   No, it is not quite the same, because the point that I was making was about a legal capacity, not a practical ability to get other people to help you do something.  It is the ability to obtain, for example, an order from VCAT or to obtain an enduring power of attorney by which someone could then act with your legal capacity.

MR HILL:   Yes, I apologise, your Honour.  So, accepting that the level of legal capacity can be different for the specific task, the submission would be that the applicant demonstrated enough legal capacity at least to ask other people to take care of things for him, even if he has legal capacity to take those steps himself.

GORDON A-CJ:   I find that difficult, Mr Hill.  I say that for this reason.  I find nowhere – and I will be really grateful if you could point it out to me – where he asked for that.

MR HILL:   May I take your Honours to the evidence in the respondent’s book of further materials.

GORDON A-CJ:   That is, he asked for help, he said I need help – I have this notice, and I need help, and I want you to take it over for me.

MR HILL:   I can see my instructor shaking it.  I will take your Honour to what the evidence is, and then I will ask your Honours the inferences that we ask the Court to make from it.

GORDON A-CJ:   Thank you.

JAGOT J:   When you are doing that – sorry to keep interrupting you – in paragraph 10 of your written submissions you make this point, but you make it in the context, you say:

That is not to doubt that the appellant lacked formal legal capacity –

this is why I am saying I thought it was common ground that, from the primary judge’s finding at 86 and the way the submissions are framed, that the appellant did lack formal legal capacity.  That is, he was, in law, under that disability – leave aside VCAT, VCAT can do more things – that you were accepting from that paragraph that he lacked formal legal capacity, which has a particular legal meaning, and then you were saying that even despite that, the provisions do not operate in that way, including not only because he could allegedly do these other things, but you never debated that he lacked formal legal capacity.

MR HILL:   Thank you, your Honour.  What we do say is the submission in 10 – when we say “formal legal capacity”, I now realise it is perhaps put unclearly.  We had in mind, formal legal capacity to take the steps that are covered by the VCAT order, and we would accept it is he lacked the formal legal capacity to make representations on his own behalf.

EDELMAN J:   Then getting other people to help him is useless, because if he lacks the formal capacity to take steps on his own behalf and there is no legal right for anyone else to take steps on his behalf, and he has not engaged any such legal right, then asking people to help is neither here nor there, is it?

MR HILL:   It is not only in this limited sense, your Honour.  The evidence I am about to take the Court to, what I will be submitting to your Honours is an inference can be drawn that he did at least have enough legal capacity to ask for help and engage people as an agent of some sort.  Clearly, “agent” has many different nuances in it, and it is a matter for your Honours what inferences you are prepared to draw from the evidence.  I wonder whether it would assist the Court to go to the evidence.  It should not take long.

EDELMAN J:   I think Mr Wood’s point is that engaging them as an agent only works if you have the legal capacity to engage them as an agent for that task, which would probably require an enduring power of attorney, which I think in Victoria has to be done in a prescribed form and fashion.

MR HILL:   I can certainly accept that.  If the Court discovers or it finds that the only way of engaging an agent is in the way your Honour puts to me, then the argument I am about to make will not work.  Then this goes to a different point, which is the submission that I think Justice Jagot has understood, which we have always made, which is the lack of legal capacity does not matter.

EDELMAN J:   Yes.

MR HILL:   I was trying to have a submission in between the two, and it may be that I abandon that submission promptly in the face of your Honour’s questions to me.  But if I may take the Court to the book of further materials, and at least I hope it may assist the Court in undertaking the construction task to see what actually happened.  This is on page 23 of – it is in the affidavit.  What your Honours will see, and I invite your Honours just to read, is paragraphs 2, 3 and 4.

JAGOT J:   It does not seem to say anything about – that could reflect at all of this person’s capacity.

MR HILL:   If I then could ask your Honours to go to page 27, which is exhibit NY‑1.  If you look at the bottom of page 27, you can see it is an email from someone in Forensicare – actually, the person who ended up applying for the guardianship order.  It is the date of visa cancellation.  The time is 11.40 and, as I recall, he was handed the notice sometime shortly before that, and it is these words, the appellant:

has provided verbal consent for me to contact VLA to request urgent legal assistance.

He:

has been served with a Notice of Visa Cancellation under section 501(3A) –

So, that is the phrasing that we had in mind when we said he seems to have had sufficient wherewithal to consent to his social worker contacting Victoria Legal Aid to request urgent legal assistance, and that his social worker was made aware that he had been served the notice of visa cancellation.  It is true the email does not say anything about how she became aware, but this is why I went to the facts of EFX17, where the person did not even realise that the documents they had been given were documents from the Department.

JAGOT J:   Go to page 92 of the appellant’s book of further materials and read what is under 34.

MR HILL:   I am sorry, page 92?

JAGOT J:   It is 92 down the bottom, 33 up the top.

MR HILL:   I see, yes.

JAGOT J:   You can read that for yourself, but also the boxes that are ticked on the two previous pages, including “No decision‑making capacity” under all of them except for 28, which relates to some medication.  But, leaving all this aside, in one sense, I mean, is the weight of your construction argument that, even if he had some legal capacity, leaving it aside in whatever nuanced way you could, that – well, I should flip that.  Your argument seems to be, forget all this nuanced stuff, if he had no legal – it does not matter.

MR HILL:   Yes.

JAGOT J:   That is the case you are putting.  So, I am not sure how this nuance stuff, which seems to me to be not really reconcilable with this information and with 86 of the primary judgment, and what I assumed was the position that we were here talking about, construction on the basis of a person who has no legal capacity ‑ ‑ ‑

MR HILL:   I am content to move on, if that is a more convenient for the Court.

JAGOT J:   No, no, I am just trying to work out what the true burden of your argument is.

MR HILL:   I do make the submission that the evidence allows an inference that he could consent, because that is what the social worker understood him to be doing ‑ ‑ ‑

BEECH‑JONES J:   But consent to what?  Because that is just to get legal assistance.  It does not leave open that it is legal assistance about visa cancellation.  It is at most, just legal assistance about something.

MR HILL:   In my submission, the fact that there are two sentences, and the next sentence is he has received a notice of visa cancellation, noting that Wednesday 1 December is the day he was handed it.

BEECH‑JONES J:   And Ms Jenkins has it.

MR HILL:   And that she has it.

BEECH‑JONES J:   So, I presume that she can read it.

MR HILL:   Yes.

BEECH‑JONES J:   Sorry, I interrupted Justice Gordon.

GORDON A-CJ:   It was just going to say, I understand the inference you want us to draw is that he had some capacity to give instructions by reference to those two sentences.

MR HILL:   Exactly, that is as high as the evidence goes.

GORDON A‑CJ:   And if we are against you on that, we are driven back to, it does not matter anyway.

MR HILL:   Yes, exactly.

GORDON A-CJ:   Maybe we might – subject to Justice’s Steward ‑ ‑ ‑

MR HILL:   It sounds like we might move on to ‑ ‑ ‑

STEWARD J:   I was simply going to ask, was any of this explored and in evidence before Judge Mansini?  I mean, was Sonya Jenkins called by you to give evidence?

MR HILL:   I was not briefed, but I am confident the answer is no.

STEWARD J:   Is this not a bit late, to be making this sort of factual submission?

MR HILL:   If your Honour says it, then I accept that – the email is still relevant and I invite the Court to read the email in this way.  Our primary submission is that it does not matter.  One the reasons we say this is that we say it is entirely possible than, in fact, representations could have been made on this gentleman’s behalf.  We say at the very least this interaction suggests, if events had gone slightly differently, he has lawyers as at 3 December and it is possible something could have been put in – at least it is not fanciful, based on what we know.

GORDON A-CJ:   So, you want two inferences to be drawn:  that he had some capacity to give instructions, because he consented; and secondly, that representations could have been made on his behalf, as he had lawyers as at 3 December.

MR HILL:   Yes, and we would say the second inference could be made – even if your Honours are against me on his legal capacity – in this sense:  clearly, to be legally effective, a person can only make representations on the instructions of a person with a legal capacity.  My submission is that until the middle of January, there is no formal order formalising that this gentleman lacks legal capacity, so that if lawyers had expeditiously filed representations or made representations, they may have thought they were acting on his instructions and not realised his lack of legal capacity.

GORDON A-CJ:   I do not think we can deal with hypotheticals, Mr Hill.  What we do know is that there were no representations put in, so another available inference is that they formed the view they could not get instructions from him, and instead ‑ ‑ ‑

MR HILL:   That is actually not the evidence before ‑ ‑ ‑

GORDON A-CJ:   It is not the evidence, because there is nothing before – because it has not been the subject of discussion and debate.

MR HILL:   No, I am sorry, your Honour, could I just point out, there is something relevant in the evidence which might answer your Honour’s question to me.

GORDON A-CJ:   Certainly.

MR HILL:   If your Honours go back to – it is actually in paragraph 6 of the Young affidavit on page 23.  Do your Honours see, in paragraph 6:

On 8 March VLA sought clarification from Refugee Legal –

So, they had referred the matter to Refugee Legal:

whether they were assisting the Applicant.  Refugee Legal advised VLA that they were not –

because:

the Applicant had instructed them that he had sought revocation of the cancellation of his visa.

So, we have the reason, at least, why Refugee Legal had not taken any further steps.

JAGOT J:   But he had not sought revocation ‑ ‑ ‑

MR HILL:   No, exactly, he had not.

JAGOT J:   Does that not suggest that it is all over the place, that he does not even know whether he sought it or not?

MR HILL:   No, exactly.  I do not pretend that is of great assistance to me – I was answering a question from the Acting‑Chief Justice ‑ ‑ ‑ 

JAGOT J:   I see.

MR HILL:   ‑ ‑ ‑ who had asked, did the lack of representation not suggest they realised they could get instructions.  I think I am lost in the weeds.

GORDON A-CJ:   I think, if the drawing of the inferences is a difficult exercise, at present I think we might be better off dealing with your argument, if it does not make any difference, in any event.

MR HILL:   The argument at the level of principle is that if there is a benefit available to a person who lacks legal capacity, often the law will let them retain the benefit, and my submissions will be, if representations were made in fact – this is responding to the question put to me – then we would say it is a preferable interpretation of the Act that those representations would be treated as meeting the precondition for considering revocation of the cancellation.

If it would assist the Court, I will just briefly go to the two cases that I cited in paragraph 6 of our outline.  The first is SBAH 126 FCR 552, which is in volume 6, tab 38, and we have actually summarised the relevant bit of it in footnote 18 of our submissions, but it may assist the Court to go to the case. So, paragraph 1, your Honours will see Justice Madgwick is talking about – just summarising the position of the joint judgment – where:

a child in whose name legal proceedings are commenced . . . without a court having –

appointed a responsible:

“next friend” or “tutor” –

And then his Honour agrees:

The result of such analysis appears to be that if the proceedings terminate in the child’s favour, the child may have the benefit of that.  If, however, the proceedings result in the rejection of some right –

Et cetera:

the child may not be held to that result unless, as an adult, he or she does not seek to disturb the adverse result.

His Honour agrees with that.  The two paragraphs of the joint judgment which may assist the Court are paragraphs 32 and 33, particularly 32.  We point out to the Court that – the joint judgment says it might:

be in the interests of a respondent . . . to ensure that a tutor is appointed in order to ensure that the proceeding will finally dispose of . . . it.  Otherwise, the infant applicant would not be precluded from litigating the same questions against in a new proceeding.

So, that the first case where we say this absolute rule about the effect of legal capacity is subject to statutory context.  At least in this particular context, the court seems to say there is a slightly differential operation, that if a proceeding concludes in a child’s favour, even without a tutor, the child can retain the benefit, but if the proceeding concludes against the child, the child may be able to relitigate it as an adult.

STEWARD J:   I may be wrong, but I think that is a common law exception to the usual rule about people without capacity – it may not matter.

MR HILL:   It may matter a great deal, in fact, because my other case is also about children – so that may be the answer to these cases is simply there is an exception for children.

STEWARD J:   Or exception for anyone who lacks capacity in litigation.

MR HILL:   So, the other case is SFTB 129 FCR 222, and that is in volume 6 at tab 39. It is particularly the extract in paragraph 7 that I wish to refer the Court to, if your Honours have that. In paragraph 7, the court – does everyone have SFTB?

STEWARD J:   Yes.

MR HILL:   At paragraph 7, where the court says:

At common law an infant generally cannot take action except by a next friend . . . Where a jurisdiction is statutory the statute may expressly or by implication displace the common law rule –

Then at paragraphs 10 and 11 the court talks about proceedings where migration proceedings have been brought by children without a tutor, and when the – particularly in Applicant X, how his Honour reasoned was the best interests of the children required that they be allowed to continue the proceedings even without a tutor being appointed.

So, that is the basis of our submission that if the common law rule is not absolute and is subject to contrary statutory intention.  And so, we appeal to the purpose of 501CA and its nature as a precondition for engaging the power for the Minister to revoke cancellation to say it would be more in keeping to treat the precondition as representations being received in fact precisely because of the fact, as my learned friend refers to, the Minister will not often have enough information about whether a person has legal capacity or not, and that it is of benefit to the person in the sense that it engages a power that may – I cannot say must – assist the person or benefit the person by having their visa cancellation revoked.

I am sorry, your Honours, I have lost the part of my notes where I have the answer to Justice Gordon.

GORDON A-CJ:   It is all right, when you come to it, Mr Hill, will be fine.

MR HILL:   I realise it is now part of my submissions on paragraph 8.  In paragraph 7 we were showing off a little bit.  We did a complete and thorough word search of “as soon as practicable” in the whole Act and we have given your Honours three sections which we think illustrate, at least in those sections, “as soon as practicable” does not have anything to do with the recipient’s legal capacity to understand it.

Now, particularly at 253(3), that is where a person subject to a deportation order and they must be informed “as soon as practicable” of why they have been detained, the deportation order, and then they have 48 hours to go to a court and say – this is under section 253(4) – to say it is not them.  So, we would say it is similar to this in the sense that that section seems to operate on the fact of being told why you are being deported, and it has as strict time limit in the same way that making representations under section 501CA has.

The answer to your Honour Justice Gordon’s question, we say it is certainly true at a high level of generality that the purpose of 501CA is to provide procedural fairness to the person whose visa has been cancelled.  That is certainly true.  We rely on BDS20 – and I will just give your Honours, for the moment, paragraph references.  At 93 and 94 the majority say the opportunity is “meaningful”, but in the way that is provided for in the Act.  The Act requires you to be given notice of the decision and then relevant information.  So, it is a meaningful opportunity because you are given the case against you and given a period to respond.

Then their Honours observe in paragraph 98 that the opportunity is limited in some respects, particularly as to time.  So, my learned friend says of course it is time‑limited, but to say that the purpose of the provision is to give an opportunity to respond is only the start of the analysis, because the Act also says notice must be given as soon as practicable.  Then the section requires representations to be made in the period provided for by the regulations and, as we know, that period is the fixed four‑week period.

Now, although the Court deprecates the use of extreme examples, may I respond to the coma example with a coma example of my own.  My submission is my learned friend, I think, candidly admits he is looking for a textual hook to allow taking account of a lack of legal capacity and fastens on “practicable; “practicable” looks to the point of notification.  In my submission, there is a disconnect between the Act that this lack of capacity fastens on, the notification, and then the person’s legal incapacity, which prevents them from making representations. 

One tests this by comparing the position of a person who falls into a coma the day before notification and a person who falls into a coma the day after notification, because on my learned friend’s argument, as long as the person had legal capacity at the time notification was given effect to, then the notification is valid even though, of course, they then cannot in any real way respond to the invitation – which is our elementary submission, that this argument is starting with an unfair result, and then looking for somewhere in the text to deposit the solution.  In our submission, it cannot be in the requirement to give notice as soon as practicable.

In a similar vein, my learned friend deprecates our reliance on AEU, so perhaps it would be useful if we set out what we do and do not accept.  Of course we accept that the principle of legality means that you require clear language to limit common law rights, and we also accept that inconvenient or anomalous results may sometimes be reason to depart from the text.  But where we part company is we say that when a provision says representations must be made in accordance with the regulations and empowers regulations that contain a fixed period, then there is no room, we say, for the principle of legality to do any more work because Parliament – or at least the Executive in regulations – has specifically addressed the extent of the opportunity to make representations, and there is no textual wriggle room for the principle of legality to operate. 

EDELMAN J:   Why does there have to be any textual wriggle room?  I appreciate ground 1 of the grounds of appeal refers to the word “practicable”.  But if one read ground 1 without that word and read it as saying that the Full Court erred in finding that it was not within the meaning of 501CA(3), why does one need to find within the meaning of that provision a particular word that will encompass this extreme consequence of legal incapacity, in the same way as I think you rightly concede one does not need to find any word that would encompass the extreme consequence of a fraud that deprived the person of the ability of receiving a document because it was sent to a fraudulent agent.

MR HILL:   The reason we say you need to find some textual hook is because of what we see is the invalidating effect of a lack of legal capacity, which is the inability for representations made in fact to lack any legal effect. 

JAGOT J:   Is the textual hook not “give” and “invite”?  Is that not the real textual hook here?  Because on your coma on day 2, day 1 being served, that person has been in fact given when they had capacity and has been in fact invited – so be it.  It is not about curing unfairness.  But if the person in fact has no legal capacity, can they be given, can they be invited?

MR HILL:   Yes.  We say that the reasons given in EFX17 – albeit, not dealing with a lack of legal capacity, but the reasons given for the construction of “give” and “invite” as the physical act would still stand good and would stand in the way of that construction. 

JAGOT J:   Even though – this argument was not addressed in EFX17.

MR HILL:   I accept that.  What I do say, though, is that of course cases are not authorities for what they do not decide.  On the other hand, when working out what they do decide, the court is entitled to see the comments made about the purpose of the provision – for example, it is not a provision that requires the Minister to ensure that the person understands the provision, and the ordinary meanings of “give” and “invite” is just the formal act.

Now, as to jurisdictional fact, rather than rehearse what is in our written submissions, perhaps in the interest of time, if I just make two quick points.  The first is, your Honours might recall from EFX17 paragraph 28, I mentioned at the time, the Court seemed to deprecate reading 501CA as operating on matters not known to the Minister.  We say that is an indication against this being a jurisdictional fact.

Your Honours will have seen in our written submissions we say that it is a matter of statutory construction.  One looks at the nature of the task and particularly how it fits in with the statutory scheme of it being a jurisdictional fact – as in, the legal efficacy of a notice not being known until there is a court ruling on it.  Your Honours, I hope, at least understand what are our arguments are there.

Here is a point I want to make that has not been made in writing, which is, my learned friend, in an impressive act of legal jiu‑jitsu, has taken what should be a weak point of his case and made it the centrepiece of his case, that he accepts that Minister does not know anything about – or is likely not to have great information about whether a person has legal capacity.  In my submission, that shows why it is so unlikely to be a jurisdictional fact.

Normally, a jurisdictional fact is something that the decision‑maker has a really good go at, but the court ultimately supervised by making its own decision.  It would be a very curious jurisdictional fact, we would say, when you expect that the only body that will actually be able to make a decision on it is the court on review, as opposed to the primary decision‑maker.  We would say that is a very odd‑looking statutory scheme and is unlikely to be what Parliament intended.

I think the Acting‑Chief Justice asked whether it could be seen as a question of procedural fairness.  Just to answer that question briefly, it is of course trite to say that the content of procedural fairness takes account of the statutory context.  So, we would say, if we were otherwise right about the meaning of “practicable”, to give a notice in accordance with the statutory requirement cannot be a breach of procedural fairness.  That is why we say it would be necessary to say that practicability was a jurisdictional fact.

Just on this jurisdictional fact point, my learned friend did not refer to AJL20, so the short answer we give in writing is that there is a world of difference between a requirement to remove someone as soon as reasonably practicable and a requirement to notify someone as soon as practicable.  Reasonableness always imports a notion of objectivity which then promotes – indicates that it could be something determined by a court, and that is even more so in reasonable practicability in 198 of the Act, because that is a constitutional fact as to the limits on the validity of immigration detention.  We would say the time for giving notice is far removed.  Those cases on reasonable practicability under 198, we say, provide no assistance as to whether this is a jurisdictional fact.  Unless the Court has any questions, those are our submissions on ground 1.

Ground 2 is about whether there can more than one notification.  We embrace the reasonings of the majority in BDS20.  Could I ask the Court to go to that case.  BDS20 285 FCR 43 is in volume 5 under tab 22. Could I ask the Court to start with paragraph 93 – that should be on page 737 of the joint book of authorities.

GORDON A-CJ:   Page 63 of the report?

MR HILL:   Yes, your Honour.  Is it more convenient for the Court if I give you report numbers?

GORDON A-CJ:   I think different people are doing different things – that is not a very helpful answer to you, I am sorry, Mr Hill.

MR HILL:   I will give as much information as I can.  The only reason is your Honours might recall that in the course of ground 1 I referred to paragraphs 93, 94 and 98.  I just wanted to show that to your Honours.  So, you see halfway through paragraph 93 it says:

one purpose of s 501CA(3) and s 501CA(4) is evidently to require the Minister to give the person an opportunity to be heard –

Then 94 says:

A particular purpose of s 501CA(3) is to ensure that the opportunity . . . is a meaningful one.

Then the rest of that paragraph is why I say a meaningful opportunity in the way provided for by the section is what their Honours mean.  You give them the decision to cancel, and you give them relevant information, which is the case against them.  Then paragraph 98 is where I get the submission that it is a limited opportunity – this is about halfway through that paragraph:

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 –

So, that is the paragraphs relevant to ground 1.  If I could then, starting with paragraph 98, go through the paragraphs that are relevant to ground 2.  The short points we are making are the statutory scheme has fixed timelines for making representations and that the period for making representations and then not answering representations has consequences for the lawfulness of immigration detention, because at the end of that period, if no representations are made, a duty arises to remove the person, as soon as reasonably practicable, from Australia.

We say those two features in particular indicate that it is a scheme that only works if there is one notification.  My learned friend, in part of his submissions, said that a criticism that you can make of our submissions is that of the representation in fact is that it would extend the period of immigration detention.  But, of course, the same is true of any construction because, on my learned friend’s construction, it is necessary for the person to remain in immigration detention while there is a hearing as to whether they do or do not have legal capacity and then steps are taken to appoint a guardian, if need be, so they can make representations.

We would say the idea that one interpretation or the other lengthens the period of immigration detention, we would say, should not be accepted.  What is important is that immigration detention, the length of it, needs to be precisely determined and it is notable that at the end of the period, if no representations are made a duty can arise to remove.  So, they are the main points ‑ ‑ ‑ 

GORDON A‑CJ:   The factual example that was put to you was someone, where there is a sentence imposed and then it is either overturned or reduced on appeal to remove it, falling within the “substantial criminal record” definition.

MR HILL:   Yes.  I would love to be able to say to your Honours that, in that situation, the original cancellation decision could be set aside, but it cannot.  To answer your Honour’s questions – this is not something that helps my case, but hopefully it assists the Court to understand how the Act would work in that situation – if your Honours have it, 501(3A), I was looking at whether the existence of the conviction could be said to be a jurisdictional fact on which the visa cancellation depended, 501(3A), if your Honours have it, I think it is on page 25, but your Honours see that section 501(3A) says:

The Minister must cancel . . . if:

(a)the Minister is satisfied that the person does not pass the character test because of the operation of –

So, if the Minister makes an error of law and thinks something is a sentence that comes within that paragraph but it does not, then the Minister’s decision, the cancellation can be set aside and then that is a precondition to any later revocation.  But if, at the time of the decision, there was a conviction that comes within the period, the fact that at a later point, a conviction was set aside, does not invalidate the decision. 

But another relevant provision to look at here, if your Honours still have section 500, is subsection (10) which deals with pardons and then the quashing of convictions.

BEECH-JONES J:   Subsection (10) of what, sorry?

MR HILL:   Section 501.

BEECH-JONES J:   Section 501.

MR HILL:   So, in the joint book of authorities, that is page 30.  Do your Honours see how subsection (10) says:

For the purposes of the character test, a sentence imposed on a person, or the conviction . . . is to be disregarded if:

(a)the conviction concerned has been quashed or otherwise nullified –

GORDON A-CJ:   That does not deal with reduction in sentence though, does it?

MR HILL:   It does not, and it does not alter my initial submission that 501(3A) is looking at the legal position as at a certain time and, if the conviction is overturned later, does not invalidate ‑ ‑ ‑

EDELMAN J:   Well, it might, because the effect of invalidating the decision is the decision never existed and never had any operation in law.  So then one looks at (3A)(a), and the Minister could not have been satisfied “because of the operation of”, because it never had any operation as a matter of law.

MR HILL:   I see what your Honour puts to me, and that would then be the answer.  The answer would be, if a person’s conviction – I accept this does not deal with a reduction in sentence, your Honour Justice Gordon.  It does deal with the person whose conviction is quashed after the initial decision.  I think the analysis put to me by Justice Edelman is the initial cancellation is invalid and the invalidity of the initial cancellation means any non‑revocation is also invalid, because an essential precondition for a decision under 501CA is that there is a valid cancellation.

BEECH-JONES J:   Does that turn on the meaning of the words “is to be disregarded”?

MR HILL:   Exactly, it turns on “is to be disregarded”.  What I would submit is, of course, if a person’s conviction is set aside before a decision is made under 501CA, there is no difficulty with them drawing that to the Minister’s attention, even though the initial period for making representations has passed.  This is a point made by the majority in BDS20 at paragraphs 107 and 108.  They point out that the fact that the section operates on representations being made does not then extinguish or exhaust the requirements of procedural fairness. 

Of course, further representations can be made, further information can be provided to a person to comment on, all the way up to a decision being made.  So, that at least deals with the situation where a person’s conviction is quashed before a decision is made.  If it is quashed after the decision is made, we have the analysis I have just put to your Honours, and of course the Act contains a mechanism at 195A for the granting of a visa to a person in that situation.

GORDON A-CJ:   Just so I am clear, Mr Wood put against you that the 195A route means that two consequences – or the negative consequences of a cancellation of a visa would remain at large, and that was one reason why he said you should read the singular “notice” plurally.  Your answer is, well, that is the scheme and that is the end of it?

MR HILL:   That is my answer, yes.

GORDON A-CJ:   So, that would apply also in relation to a subsequent reduction in sentence taking it outside of “substantial criminal record” as well?

MR HILL:   Yes.  So I was taking the Court through BDS20 ‑ ‑ ‑

EDELMAN J:   Why would not a reduction in a sentence that takes an applicant outside the operation of (3A)(a)(i), “substantial criminal record”, then also have the effect that it was no longer because of the operation of a substantial criminal record?  Because, retrospectively, there was no substantial criminal record.

MR HILL:   The difference is that section 501(10), as put to me by Justice Beech-Jones, it depends on what the effect of these words “is to be disregarded”, whether than is an ongoing provision that reaches back to affect decisions that are already made.  Without those words, normally the validity of a decision would be assessed on the effect of the law at that time, unless there was something about the later amendment to the law that required it to reach back and change the legal position.

EDELMAN J:   I am making a slightly different point, though.  I am saying that you can read (3A)(a) as involving two jurisdictional preconditions, not one:  the first one is the satisfaction of the Minister, and the second one is that that satisfaction arises “because of the operation of” – so, one does not even need subsection (10) in that respect. 

MR HILL:   What your Honour is putting to me may assist me in this case, but I am confident that is not a submission the Minister would be accepting in any other case, so, in my submission, it is ‑ ‑ ‑

EDELMAN J:   Our job is to work out how to make the Act work as a whole.

MR HILL:   Of course, I understand what your Honour is putting to me.  And that would be a way of overcoming the conundrum; I cannot bring myself to embrace that submission, though, your Honour.

GORDON A-CJ:   Just so I can summarise where we have got to on this ground 2, you say that it is a power that is only exercised once.

MR HILL:   Yes.

GORDON A-CJ:   It is exercised once, on the set of facts at the time which then existed.

MR HILL:   Yes.

GORDON A‑CJ:   If the Minister has made a mistake in relation to the satisfaction in (a), then it would be set aside, as would be the rejection of any revocation of cancellation.

MR HILL:   Yes.

GORDON A‑CJ:   If there are changed factual circumstances, then, too bad, your only route home is section 195A.

MR HILL:   Apart from “too bad”, that is exactly the Minister’s submission.

GORDON A-CJ:   Thank you.

MR HILL:   The change in circumstances, if I could finish with this point, that in fact is what we embrace; that my learned friend has put to your Honours here is two situations, it is only these two situations where you might need to issue a further notice.  But drilling down, the argument, if it is good, would mean a further notice is required whenever it is legally unreasonable not to issue a further notice.

And, as we understand particularly the reasoning of Justice Rares in BDS20, his Honour would say you require a fresh notice anytime there is a material change in circumstances that could change the decision, so not just on whether a person meets or does not meet the character test, but whether there is another reason to revoke cancellation.  And so, we say it is why the majority called it an inchoate duty.  If I can give your Honours the reference to “inchoate” as I must say that word before I sit down, it is in paragraph 103 of their Honour’s reasons.

We have referred to a decision of Justice Sundberg in a case called Manaf 111 ALD 437, that is in joint book of authorities, tab 34. I do not need to take your Honours to it. If I could just say that we rely particularly on paragraph [48] of that decision.

GORDON A-CJ:   For what proposition?

MR HILL:   His Honour says:

The prescriptive timing regime that runs through the Act –

in that case, it was the timing for notifying someone of an adverse visa decision so that they could then apply to the Migration Review Tribunal, and his Honour held that the prescriptive timing regime for making applications within a certain period of a notice being given and that being a jurisdictional requirement was:

inconsistent with the notion –

that you can start again by issuing a fresh notice, and that provided a contrary intention for the purposes of the Acts Interpretation Act.  So,

your Honours might remember I said there are two main features we rely on:  one is the prescriptive timing regime, one is the need to identify with precision whether immigration detention is lawful and for not extending it any further than is necessary.

Unless there are any questions from the Court, there are the Minister’s submissions.

GORDON A-CJ:   Thank you, Mr Hill.  Any reply, Mr Wood?

MR WOOD:   Just a few points, your Honours.  It will not take me long.  First of all, Mr Hill submits, bearing on question 1, as I understand it, that there is no meaningful distinction between a person who “lacks all practical ability” to respond to a notice on the one hand, and, on the other hand, a person who lacks legal capacity to respond.

That submission should be rejected.  In EFX17, this Court approved Nguyen – I do not need to turn to it, but it is tab 45 of volume 6, in particular, page 320 of that judgment – the import of that analysis in Nguyen is that a person, even though they have no English capacity and therefore are incapable of understanding a document given to them in English is nevertheless to be treated effectively as if they receive a document that appears official – appears to be formal – in a language that they do not understand, what they ought to do is to seek a translator/advice – and they might face practical challenges, but they will be able, upon pursuing those paths, to make a representation.

It is a radically or fundamentally different situation where a person lacks capacity.  Why?  Because the person could not lawfully make a representation in response to the notice – it is the sharpest point of distinction.  Mr Hill’s submissions studiously avoid dealing with all seven members of the High Court in Woolley dealing with a similar right under the Act to request removal under 198(1), where the Court accepted in the context of minors who lacked capacity of the power, that the right could not be exercised.  Now, in terms of the prolonging on detention, I think I mentioned Falzon earlier, more precisely Falzon, volume 3, tab 10, paragraph 57 is the relevant reference.

The second point I wish to make is, before lunch, Mr Hill was asked questions by the Court about what would transpire if the Minister knew that the person lacked decision‑making capacity.  It was not entirely clear to me but, as I understood Mr Hill’s answer, the suggestion was that it might affect the method by which the notice/invitation was given to the person, having regard to the language of the now‑repealed or now‑amended version of 501CA that uses the language in 501CA(3):

give the person, in the way that the Minister considers appropriate in the circumstances –

Mr Hill is right to say that that is about method, not time.  The question of timing of the giving of the notice is covered by the chapeau, that is:

As soon as practicable –

So, if it is method not time, it does not matter which method might be adopted reasonably by the Minister on notice of the incapacity – whether it is dispatched by post, hand‑delivered or even given to a friend or associate of the relevant person – because the underlying problem is the person’s inability to make a decision about whether to make representations and if so, what representations are to be made.  Adverting to the mere possibility of devising an appropriate method when confronted with this situation simply is rationally incapable of resolving the problem that this case presents.

There are, logically, only two ways to avoid the stark problem of persons who lack decision‑making capacity not being afforded the same rights as others.  There are, (a), the notice is not legally effective and therefore can be issued again when capacity returns, or a guardian is appointed, or, (b), the notice can be issued on a second occasion.  There are the only two logical ways to avoid the stark problem that this case raises.

The third point I wanted to make – and I think, really, the final point before one matter of clarification on our argument – is that Mr Hill criticises us for construing the Act backward from the facts.  Now, that might be a cogent submission to make if the facts of a particular case were extraordinarily specific and could not have possibly been anticipated by Parliament, in which case the answer might be, too bad.

That is not this case for the reasons that we have identified, which is the status of a person lacking legal decision‑making capacity is a status, (a), well understood in the legal system – hence the jurisdiction of the courts, the statutory jurisdiction of tribunals – but (b), to the extent relevant or necessary, recognised in the four corners of the Act itself.  So, albeit that the case that we present is an instance of that situation, and albeit that that situation is not common for people to lack capacity, it is a well‑recognised set of circumstances in respect of which there is a body of law that Parliament can be taken to be aware of.

Now, by way of clarification in this respect, I think Justice Beech‑Jones – I took the Court earlier to section 48(1A) of the Act and I will come back to that section in a moment.  Justice Beech‑Jones, when I addressed that section this morning, your Honour asked me, well, that section 48(1A) which expressly refers to these are applications that might have been made on a person’s behalf and deals with the irrelevance for the purposes of that provision of any mental impairment of the underlying person for whom the visa is sought or them being a minor, I think your Honour put to me, well, does that hurt me rather than help me.

The answer, your Honour, is that it helps me because if one tracks backwards, one starts with section 45 of the Act.  Section 45 is the provision that confers the right on a non‑citizen to apply for a visa of a particular subclass.  One then goes to section 46, which contains the requirements for such an application for a visa to be valid.  Now, in neither section 45, nor in section 46, is there recognition in terms of incapacity.  Rather, incapacity by reason of lacking mental capacity because of a disability or because of minority is just a legal premise that the legal system recognises may be something that means that you cannot exercise a legal right that this Act or another Act might give you.

The significance of 48(1A), then, is that what it does is in its express terms is acknowledge the very circumstance that a visa application might not be made by the person who seeks the visa, but instead by someone on behalf of the non‑citizen for whom a visa is sought – so, for example, a minor or a person who suffers from a mental impairment – and what it does is it rights a rule as to a consequence of a particular scenario that if the non‑citizen is denied – or refused, rather – a visa, then 48(1A) rights a rule, the effect of which is that you can only then apply for visas of certain classes and not other classes, and for the purpose of that preclusionary rule, says it does not matter if the underlying non‑citizen – in other words, the person for whom the visa is sought – did not know about or understand the nature of the application due to mental impairment or because of being a minor.

One can see why those provisions might have been required, because otherwise legal argument might have been available to say, well, a person who did not understand that they were making a visa application because it was made on their behalf should not be visited with an adverse consequence by reason of the refusal.  So, if Parliament said, well, we are going to adjust that and say we are going to make it clear, that even then, if the person does not know a visa application is being made on their behalf, they do suffer this adverse consequence.  And the very same formulation is contained in section 48A of the Act, subsection (1AA), which has the same formulation where:

an application for a protection visa is made on a non‑citizen’s behalf –

And if it has been refused, then, irrespective of whether the underlying non‑citizen has a mental impairment and so forth, this is the adverse consequence written.  So, if Parliament wanted to with irresistible clearness provide that a giving of a notice under 501CA(3) is legally effective, irrespective of whether a recipient of the notice does not or could not understand the notice or invitation due to mental impairment or due to being a minor, that is the very sort of language you would expect to find in 501CA(3), but it is not there.

Your Honours, there is only – perhaps a final point by way of response – the scenario of a coma on day 2 rather than the coma preceding the relevant period.  For a start, ground 2 would be an answer to that, even if ground 1 is not.  In any event, the second answer is there is a meaningful distinction between a person with capacity receiving a notice on day 1, having a 28‑day period within which to get their skates on and put a response in if they wished to.

Now, all sorts of misadventures can operate on people.  There is not necessarily a neat statutory answer to all of them.  But a person might perhaps be best served to act quickly upon being given a notice with a limited duration, and if they do not act quickly, including by appointing lawyers and so forth and giving instructions to make representations, then they might suffer an unfortunate consequence at the end of it, but that is not to defeat our argument when the person never has notice of the 28‑day period at all from the outset.

Subject to any questions, the only other thing I wanted to say, your Honours, is this.  I am conscious that the course of this proceeding has involved my client identifying a problem.  What we have identified is two solutions – or contended solutions – to the problem.  Solution one involved interpretation of “practicable” plus “jurisdictional fact”.  That is ground one.  Solution two involved interpretation of “practicable” plus section 33(1) of the Acts Interpretation Act.

Now, we are conscious that other possible textual options have been identified in the course of today.  One of them is the possibility that the person is not a person for the purpose of receiving a notice under 501CA.  Another one has been the meaning of the words “give” and “invite”, despite EFX17 informed by the fact that the nature of the argument in EFX17 was entirely different from the one that we advanced here.  We certainly do not wish to foreclose the Court concluding that there is a problem, and the purpose of the provision is such that that problem was not intended – or intended not to be a problem.  If we have the wrong solutions, we do not want to foreclose ‑ ‑ ‑

GORDON A-CJ:   We were going to raise that with you.  We wondered whether your notice of appeal might need possibly some slight amendment.  It is on page 93.

MR WOOD:   Yes, I have given that attention myself and I was about to say what our suggestion is.  It seems to me that the solution might be a relatively simple one.  So, if one looks at the first ground, even though it is enumerated 2, that if one did this, it would continue to read:

The Full Court erred in failing to find it was not –

And instead of the words “practicable” going through to the next line where it says “the Migration Act1958”, if you struck through those 10 or so words and you just inserted the word “lawful”, so the ground would then read, the Full Court erred in failing to find it was not lawful for the respondent’s delegate to give the appellant notice under 501(3A).

That would then admit of all of the different textual possibilities that have been discussed, of course, including the ones that we have prosecuted.  If there is a costs consequence in terms of the hearing below and so forth, then the Court will do what they do with that, but we do not understand there to be a point ‑ ‑ ‑

GORDON A-CJ:   I think we might need to slow down a bit.  It seems to me that if you are going to do that, you are going to have to retrofit back in the reference to 501CA, because it says that subsection.

MR WOOD:   Yes, I agree with that.  So it might be cleanest if the Court ‑ ‑ ‑

GORDON A-CJ:   Can we raise two other matters with you.  Is that the only amendment you proposed, Mr Wood?

MR WOOD:   Yes.

GORDON A-CJ:   We wondered whether the last three lines of paragraph 3 you still rely upon.  You may need to give some consideration to this:  whether the declaration in (b)(i) is the declaration that you would then seek.  I do not want you to draft on the run, because it is dangerous, as we all know.

MR WOOD:   Perhaps the best thing is for me to take that on notice.

GORDON A-CJ:   I think you might have a conversation and discussion with your learned friend about the amendments that you would seek to reflect.  I think, as you put it, there are at least a number of routes that have

been put forward and the notice of appeal should, to the extent that you seek to rely upon them, reflect that.  At the moment, it does not in each of those paragraphs.  Mr Hill, are you at all embarrassed or ‑ ‑ ‑

MR HILL:   Generally, your Honour?

STEWARD J:   This goes back to the question I asked you earlier.

MR HILL:  If I can put it this way, I am a bit alarmed by the prospect that the Court has been invited to find any way to find for the applicants.  Of course, the two arguments I do recall are the person argument, and I have given your Honours the answer that we give, which is subsection (1) identifies the person, then subsection (3) is that person.  Then I do recall perhaps the words “give” and “invite” ‑ ‑ ‑

GORDON A-CJ:   So, that is in the context that I put to you of the fact that we have the carving‑out of somebody who lacks legal capacity at the time of sentence – is the context. 

MR HILL:   Yes.

GORDON A-CJ:   Then one reads as a matter of construction by reference to the purpose of the provisions, what happens if someone lacks legal capacity in the way in which we have discussed, by reference to the notice and the invitation – “invite” and “give”.

MR HILL:   Yes.  So, I do understand that argument we have put, that this Court has held in EFX17, albeit not dealing with lack of legal capacity, but the reasoning covers, we would say – it applies equally to this situation, and if they were the only two additional ‑ ‑ ‑

EDELMAN J:   I think there was a fourth.  The first is “reasonably practicable” or “practicable”, the second is “give” and “invite”, the third is “person” – and you have responded to all of those.  I think the fourth one is just the provision does not speak to circumstances of incapacity in the same way as it does not speak to the extreme cases of fraud.  I think you have given us your response to that, as well.

MR HILL:   I am glad to hear that, your Honour, because I was thinking an additional submission we would put on that might relate back to the “person” argument, which is it is necessary to construe the section so that notice will be given to a person.  Subject to that, yes, I ‑ ‑ ‑

GORDON A‑CJ:   So, given to a person regardless of lack of legal capacity.

MR HILL:   Whatever construction is given, it has to result in the person or their guardian – or somehow the notice being given in relation to the person.

GORDON A‑CJ:   So, then we are driven back to, what is the consequence, if we are against you, about what happens if the person who is given the notice suffers from a lack of legal capacity.

MR HILL:   Yes.

GORDON A‑CJ:   There are, really, two questions.  One is, do you oppose Mr Wood being given leave to amend his notice of appeal after discussion with you?

MR HILL:   Certainly not after discussion with me, and it sounds like it is merely to reflect the course of argument, so we would not object to that.

GORDON A‑CJ:   Second, do you wish to put on any other written submissions?  I think we should give you an opportunity, if you would like to do so, in response to those, or do you feel as though you have had an opportunity to respond to each of those four arguments?

MR HILL:   I have had an opportunity to respond to those arguments.  I thank the Court.

GORDON A‑CJ:   Thank you, Mr Hill.  Mr Wood, how long do you think need to address those three paragraphs?  There may be others, but you understand the point we are seeking to discuss with you.

MR WOOD:   Would 4.00 pm on Friday be indulgent?

GORDON A‑CJ:   It is indulgent, but that is all right.

MR WOOD:   Thank you, your Honour.

GORDON A‑CJ:   Thank you.  The Court will now adjourn to 10.00 am on Wednesday, 4 September.

AT 3.42 PM THE MATTER WAS ADJOURNED