BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs

The appellant, BIF23 (by his litigation guardian), appeals to the High Court of Australia against a decision of the Minister for Immigration, Citizenship and Multicultural Affairs. The dispute concerns the interpretation of provisions within the *Migration Act 1958* (Cth) relating to the cancellation of visas and the opportunity for individuals to seek revocation of such cancellations. The appeal raises important questions about the timing and nature of the Minister's obligations when dealing with individuals who may lack decision-making capacity.

The High Court is required to determine three principal questions of statutory construction. Firstly, the meaning of the phrase "as soon as practicable" as it appears in section 501CA(3) of the *Migration Act*. Secondly, whether the determination of whether a notice or invitation has been given "as soon as practicable" is a question of jurisdictional fact, or if it is a matter to be decided by the Minister subject only to conventional constraints such as irrationality. Thirdly, the appeal considers whether the *Migration Act* exhibits a contrary intention to the default rule in section 33(1) of the *Acts Interpretation Act 1901* (Cth), which mandates that a duty imposed by an Act must be performed from time to time as occasion requires.

The appellant argues for a purposive construction of section 501CA(3), contending that its purpose is to ensure a meaningful opportunity for a person to seek revocation of their visa cancellation. This requires the Minister to consider the recipient's capacity to act on the notice or invitation. The appellant submits that the Minister's construction, which focuses on the physical act of issuing the notice, would render the opportunity futile for individuals lacking decision-making capacity, thereby contravening the principle of legality. The appellant also points to other provisions within the *Migration Act* that recognise the inability of certain individuals, such as minors or those lacking capacity, to exercise rights conferred by the Act, suggesting that section 501CA(3) should be interpreted consistently with this recognition. The Court also considered whether a person lacking legal capacity could make legally effective representations under section 501CA.