BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 469
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 469
File number(s): MLG 2348 of 2022 Judgment of: JUDGE MANSINI Date of judgment: 7 June 2023 Catchwords: MIGRATION– Application for extension of time where application for judicial review filed 9 months and 22 days late – delay explained by appointment of litigation guardian and merits reasonably arguable – extension of the time for filing allowed – consideration of substantive application for judicial review – where proper statutory construction of s.501CA(3) does not require a non-citizen to understand the visa cancellation notice – what is “practicable” relates to the temporal condition on the Minister’s obligation to “give” and “invite” – to the extent that procedural fairness attends on the obligation at s.501CA(3) the assessment is with regard to what was known or could have been known at the time of issue of the notice – not unreasonable, irrational or illogical to determine it appropriate to issue the notice in the manner and time at which it was issued – application dismissed. Legislation: Migration Act 1958 (Cth) ss.189, 477(1), 477(2), 501(3A), 501(6), 501(7), 501CA
Migration Amendment (Aggregate Sentences) Act2023 (Cth)
Migration Regulations 1994 (Cth) reg 2.52(2)(b)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r.2.05
Guardianship and Administration Act 2019 (Vic) ss. 22, 23
Sentencing Act 1991 (Vic) s.91
Australia, House of Representatives, Parliamentary Debates (Hansard), 24 September 2014 at 10327
Cases cited: Aciek v Minister for Immigration [2017] FCCA 3237
ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174
BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91
Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3
DZAFF v Minister for Immigration and Border Protection [2015] FCA 544
Martin v Commonwealth of Australia (1975) 7 ACTR 1
Minister for Immigration and Border Protection v EFX17 [2021] HCA 9
Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Multicultural Affairs vSZFDE (2006) FCAFC 142
Minister forImmigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M7/2021 v Minister for Home Affairs (2021) 95 ALJR 404
R v HC (2017) 325 FLR 59
Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67
Re Patterson; Ex parte Taylor (2001) 207 CLR
Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82
Stubbings v The Queen [2023] NSWCCA 69
SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611
SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86
Tran v Minister for Immigration and Border Protection [2014] FCA 533
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28
Uebergang v Australian Wheat Board (1980) 145 CLR 266
WACBv Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 190
WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075
WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726
Division: Division 2 General Federal Law Number of paragraphs: 105 Date of hearing: 22 May 2023 Place: Melbourne Counsel for the Applicant: Ms E Brumby Solicitor for the Applicant: Victoria Legal Aid Counsel for the Respondent: Mr J Barrington Solicitor for the Respondent: Sparke Helmore ORDERS
MLG 2348 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: BIF23
ApplicantAND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
7 June 2023
THE COURT ORDERS THAT:
1.Pursuant to s.477(2) of the Migration Act 1958 (Cth) the time for the Applicant making an application to the Federal Circuit and Family Court of Australia for a remedy to be granted in the exercise of the Court’s jurisdiction under s.476 of the Act is extended to 12 October 2022.
2.The substantive application as amended on 1 May 2023 is dismissed.
3.The Applicant pay the costs of the First Respondent fixed in the sum of $8,371.00.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE MANSINI
IN SUMMARY
The Applicant by his litigation guardian has applied for judicial review of a migration decision made by a delegate of the Respondent to cancel the Applicant’s Class AH Subclass 101 Child (Permanent) visa pursuant to s.501(3A) of the Migration Act 1958 (Cth) (Act).
Being made 9 months and 22 days after the expiry of the statutory timeframe, the Applicant’s counsel first sought an extension of time under s.477(2) of the Act so that his substantive application could be considered by this Court.
For the reasons that follow, it is necessary in the interests of the administration of justice to grant an extension of the 35-day filing period and the substantive application is dismissed.
The relevant facts
The Applicant is a citizen of Cambodia, born in 1989.
In 2002, the Applicant arrived in Australia with his mother on a Class AH Subclass 101 Child (Permanent) visa.
On 22 October 2021, the Applicant plead guilty to and was convicted of various offences including theft from a shop, intentionally causing injury and affray (the October 2021 Convictions). He was sentenced to an aggregate sentence of imprisonment of 18 months, to be served at a correctional centre. The certified sentencing records included the following notations:
Custody Management Issues
The accused may be at risk due to the following:
Psychiatric illness
Other:
SEE FORENSICARE REPORT DATED 3/7/2021
APPEARS INCOHERENT
Recommend all reasonable assessment and supervision to ensure safe custody.
On 1 November 2021, a delegate of the Respondent sent an email to the correctional centre in which they advised that the Applicant was being considered for visa cancellation under s.501 of the Act due to his criminal conduct and requested certified extracts of the Magistrates’ Court records and sentencing orders. The Respondent also asked the correctional centre to arrange for the Applicant to complete a questionnaire relating to his immigration status. The questionnaire included:
Have you been granted Australian citizenship? Date of first arrival in Australia? What name did you enter Australia with? How did you travel to Australia? If you arrived in Australia under the age of 18 years, what was the name of the person who accompanied you? Have either of your parents worked in Australia as diplomats? Were you legally adopted in Australia by an Australian citizen?
On 9 November 2021, the correctional centre responded with the completed questionnaire and a cover email which said:
Please refer attached and be advised Correctional Officer has mentioned Mr [Applicant] was very confused by these questions.
On 24 November 2021, a delegate of the Respondent sent an email to the correctional centre which attached a notice of visa cancellation (Notice) and decision record. Relevantly, of that correspondence:
(a)The cover email included a request for return of an acknowledgement of receipt or advice of refusal to sign, and a request that the full cancellation documentation be provided to the Applicant without delay as there was a limited time in which to apply for revocation. The cover email also said that the Department of Home Affairs would make arrangements for the Applicant following his release from criminal custody, including immigration detention pending removal from Australia if necessary.
(b)The Notice provided that the Applicant’s visa was cancelled under s.501(3A) of the Act because a delegate of the Respondent was satisfied that the Applicant did not pass the character test on the ground that he had a substantial criminal record within the meaning of s.501(6)(a) on the basis of s.501(7)(c) of the Act – namely, that he was serving a sentence of imprisonment, on a full time basis, in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory (the October 2021 Convictions). The Notice also included information about the opportunity to make representations to the Minister about revoking the original decision - any such representations to be made within 28 days of being handed the Notice.
On 1 December 2021, a correctional officer responded by email enclosing an acknowledgement receipt signed by the Applicant and dated 1 December 2021. That document was also signed by a corrective services officer confirming that the Notice was “handed to and received by” the Applicant.
On 23 December 2021, the Victorian Institute of Forensic Mental Health (Forensicare) urgently applied for a guardianship order from the Victorian Civil and Administrative Tribunal (VCAT) in order to make decisions on the Applicant’s behalf with respect to legal and personal matters including his visa cancellation. The application form referred to an assessment of a consultant psychiatrist of 17 December 2021 which concluded that the Applicant had no insight into his circumstances and that entrenched, firmly held, bizarre and grandiose delusions were colouring his decision making regarding his possible removal. A consultant psychiatrist’s report dated 23 December 2021 was submitted to VCAT which described that the Applicant was diagnosed with schizoaffective disorder (ongoing since July 2019), grandiose delusions, disorganisation, visual hallucinations and absent insight.
On 11 January 2022, VCAT made orders under ss.22 and 23 of the Guardianship and Administration Act 2019 (Vic) based on its state of satisfaction that the Applicant did (and does) not have the capacity to make decisions about certain personal and financial matters. Those orders appointed the Office of the Public Advocate as the Applicant’s guardian and gave them power to start and defend legal proceedings including about the Applicant’s immigration visa and parole application.
On 18 July 2022, the Applicant’s then legal representative (Refugee Legal) sent an email to the Department in which it was submitted that the Applicant had not received effective notice of the cancellation of his visa. Refugee Legal followed up on 16 August 2022 and on 17 August 2022 the Department confirmed receipt.
On 3 September 2022, the Applicant was released from the correctional centre and, pursuant to s.189 of the Act, was placed in immigration detention.
On 6 September 2022, the Department responded to the 18 July 2022 email of the Applicant’s legal representative in which it was confirmed that the Department considered the Notice to be valid and that the Applicant could not be re-notified of the decision.
Proceedings before this Court
On 12 October 2022, the Applicant’s current legal representative (Victoria Legal Aid) lodged an application for judicial review together with: an affidavit of his litigation guardian sworn on 12 October 2022; an affidavit of his legal representative sworn on 12 October 2022; and an affidavit of his former legal representative sworn on 7 October 2022.
On 2 November 2022, a response was filed on behalf of the Respondent which contended that the delegate’s decision was not affected by jurisdictional error.
On 17 November 2022, procedural orders were made by a Registrar of this Court and the matter was set down for final hearing.
On 20 January 2023, the parties were notified that this matter was listed for hearing before the Court as presently constituted on 22 February 2023.
On 23 January 2023, the Applicant’s representative advised my chambers that the Applicant had recently been released from detention and had his visa restored following the Full Court’s decision in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson).
On 7 February 2023 in reply, the Respondent advised my chambers that the Minister was considering filing an application for special leave in the High Court of Australia to review the decision in Pearson and that the parties were in agreement that this matter should be adjourned to a date not before the Minister’s special leave application and appeal, should leave be granted.
On 16 February 2023, by consent and at the request of the parties, the hearing was adjourned to a date to be advised with costs reserved.
On 1 March 2023, the Applicant’s representative wrote to my chambers requesting the matter be re-listed for hearing as early as possible after 19 April 2023. They noted the Applicant was again detained on about 20 February 2023 following the passage of the Migration Amendment (Aggregate Sentences) Act2023 (Cth) and the Applicant now considered the legislative amendments left little benefit to the Applicant in awaiting the outcome of the special leave application in Pearson.
This matter was re-listed for hearing before the Court as presently constituted on 22 May 2023 and an amended program was issued.
On 1 May 2023, an amended application was filed on behalf of the Applicant as well as a further affidavit of his litigation guardian sworn 1 May 2023 and an outline of submissions.
On 4 May 2023, the program for filing was amended by consent.
On 15 and 16 May 2023, the Respondent filed an outline of written submissions and a bundle of authorities.
At the hearing on 22 May 2023, the Applicant was represented by counsel and his litigation guardian was in attendance. The Respondent was also represented by counsel.
The Applicant remained in immigration detention at the time of the hearing.
STATUTORY FRAMEWORK
Refusal or cancellation of a visa on character grounds
Section 501 of the Act provides for Ministerial refusal or cancellation of a visa on character grounds. Relevant to the present application:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate--natural justice applies
(1) The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister--natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
…
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; …
Where a person’s visa has been cancelled under s.501(3A), s.501CA(3) of the Act imposes a duty on the Minister, as soon as practicable, to notify the person of the cancellation and invite the person to make representations as to why the cancellation decision should be revoked.
501CA Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
…
The Migration Regulations 1994 (Cth) provide that the period within which representations must be made under s.501CA(3) is 28 days after the person is given the notice and the particulars of relevant information under s.501CA(3)(a) of the Act: reg 2.52(2)(b).
Time limitation for judicial review applications
Pursuant to s.477(1) of the Act, an application to this Court is to be filed within 35 days of the date of the migration decision.
Section 477(2) of the Act allows the Court to grant an extension of the 35-day period within which an application must be made if satisfied that it is necessary in the interests of the administration of justice to make the order.
The statute does not specify particular criteria which must be satisfied to establish the sole mandatory consideration that it is in “the interests of the administration of justice” to grant an extension.
In Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28 (Katoa) at [12], the majority explained the relevant considerations for the Court when applying the provision:
Other than the "interests of the administration of justice", there are no mandatory relevant considerations, whether express or to be implied from the "subject-matter, scope and purpose" of the Act. The focus of s 477A(2)(b) is not on the interests of the applicant, but the broader interests of the administration of justice. So framed, the paragraph allows the Court to look at a myriad of facts and circumstances, including the length of the applicant's delay, reasons for the delay, prejudice to the respondent, prejudice to third parties and the merits of the underlying application. The level of satisfaction for the Court to reach is not low: the Court must be satisfied not just that an extension of time is desirable, but that it is needed in the interests of the administration of justice.
See also: Katoa at [35], [39] and [62] (Gordon, Edelman and Steward JJ); Plaintiff M7/2021 v Minister for Home Affairs (2021) 95 ALJR 404 at [28].
Although it is often appropriate to assess merits at a “reasonably impressionistic level” or at a “threshold level” in terms of whether the proposed ground(s) “enjoy[s] reasonable prospects of success”, the High Court in Katoa held that it is within the Court’s jurisdiction to have regard to the merits of a ground of review as it considers appropriate in the circumstances of the case: [17]-[19]. For example, at [18]:
If the delay is lengthy and unexplained, the applicant may be required to show that their case is strong or even "exceptional”. In such a case, a proper exercise of the power conferred by s 477A(2) will not require the judge to confine their consideration of the merits to an assessment of what is "reasonably arguable" or some similar standard. In other cases, the proposed ground of review may be hopeless but it may be necessary to examine the proposed application in some detail to reach that conclusion.
APPLICATION FOR EXTENSION OF TIME
It is not controversial that the present application was filed late.
The written notice of the decision to cancel the Applicant’s visa was dated 24 November 2021. Therefore, the Applicant had until 29 December 2021 to make an application for judicial review in this Court.
The application for review was lodged electronically on 12 October 2022 but was not accepted for filing in accordance with rule 2.05 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) until 21 October 2022.
Accordingly, the application was made 296 days (9 months and 22 days) after the expiry of the statutory timeframe. I turn now to consider whether to grant an extension of the time for filing having regard to the established principles.
Delay and explanation
The Court has, in other cases, described a delay of 74 days as “substantial” and a delay of 54 days as likely to be fatal to an application for an extension of time where there is no reason for the delay: see, WZASQ v Minister for Immigration and Border Protection [2013] FCCA 1726 at [14]; and WZANW v Minister for Immigration and Citizenship [2009] FMCA 1075 at [28]. Typically the longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 (Tran) at [38]. The absence of any satisfactory explanation of itself may be a sufficient basis to refuse an extension of time in a case of a long delay: Tran at [38].
Whether the delay was 9 months and 7 days or a longer period of 9 months and 22 days (as earlier concluded), the application was filed outside the statutory timeframe and the delay was lengthy.
The Applicant’s counsel explained the delay by: the Applicant’s lack of decision-making capacity pending appointment of the Public Advocate prior to 11 January 2022; the complexity of his case being jointly managed by Forensicare, the Office of the Public Advocate, Refugee Legal and Victoria Legal Aid; the request of Refugee Legal to re-notify the Applicant of the cancellation decision; and incorrect instructions provided by the Applicant to his advisers. The Respondent did not take issue with the adequacy of these reasons for the delay.
By the submissions it may also be understood as accepted as between the parties that there was a reasonable explanation for at least those parts of the delay which may be attributed to the period pending and from the appointment of the Public Advocate on 11 January 2022 and the period from the representative’s first attempt to lodge the judicial review application on 12 October 2022 until it was accepted for filing on 21 October 2022.
In the present case, it may be accepted that the substantive part of the delay was outside of the Applicant’s control given on 23 December 2021 (before this application was required to be filed) an application was made for guardianship and since 11 January 2022 he was represented by an appointed guardian. I consider this explanation to weigh in favour of a grant of an extension of time.
Prejudice and public interest
The Respondent contended that there is no specific prejudice it would suffer were the time extended, other than its legitimate interest in the orderly and proper administration of the Act. The mere absence of prejudice is insufficient to warrant the grant of an extension: SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6].
However there is a public interest in ensuring that decisions of the executive are made lawfully. Relevant to this will be the merits of the substantive grounds relied upon, which are considered further below. It has also been recognised that there is a public interest in the finality of administrative decisions: Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67 at [15]-[17].
I consider prejudice a neutral factor and public interest to weigh slightly against the grant of an extension of time in the present case.
Merit of the substantive application
The time limitation at s.477(2) of the Act reflects the Parliament’s intention that an applicant should have only a relatively short time in which to challenge a migration decision. While the discretion of the Court is broad, if it is proper to conclude that a claim is bound to fail, the Court should not permit the application to proceed and accordingly decline to extend time.
The cases make clear that, for the purposes of an extension of time application, the Court is concerned with whether the grounds available to the applicant are reasonably arguable.
Each of the 3 alternative grounds of the substantive application challenged the giving of the Notice to the Applicant pursuant to s.501CA(3) of the Act for reasons which related to the Applicant’s capacity. In summary:
(a)It was not “practicable” to deliver the Notice to the Applicant at the time and manner in which it was delivered (the First Ground);
(b)The purported delivery of the Notice constituted a denial of procedural fairness (the Second Ground); and/or
(c)The Respondent acted unreasonably, irrationally or illogically in determining it was appropriate to issue the Notice in the manner and at the time at which it was issued (the Third Ground).
The substantive grounds were articulated as involving apparently novel argument canvassed in obiter in existing Full Court authority in BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91 (BDS20) and distinct from that considered in the existing High Court authority in Minister for Immigration and Border Protection v EFX17 [2021] HCA 9 (EFX17). The Respondent strongly disagreed.
At an impressionistic level, the merits were reasonably arguable or at least not so obviously hopeless as to weigh against a grant of the extension of time where to do so would confer upon the Applicant a right of appeal which would otherwise be precluded.
Conclusion as to extension of time application
The application in this case being made 9 months and 22 days outside the statutory timeframe, the Court may only grant an extension of the time within which the application was to be made if satisfied such extension is in the interests of the administration of justice.
Weighing all of the considerations above, I am satisfied that it is in the interests of the administration of justice that there be an extension of the period to make an application for judicial review. The application for an extension of time will be allowed and the substantive application determined on its merit.
FIRST GROUND
The respective contentions
The Applicant’s counsel contended that, on the proper construction of s.501CA(3), there was no power for a visa cancellation notice to be issued in the Applicant’s circumstances until the guardianship orders were made on 11 January 2022 (after which time there was a person appointed with authority to act on the Applicant’s behalf). That is so notwithstanding that the guardian order post-dated the issue of the Notice because the Applicant was objectively totally incapacitated from acting on the Notice for medical reasons at the time of delivery and therefore it was not “practicable” within the meaning of s.501CA(3) of the Act for the Minister to have caused the delivery of the Notice to him as he was incapable of receiving it in any meaningful way. The Applicant’s counsel said this objective assessment is to be conducted at the time of the judicial review application hearing, akin to whether service has been validly effected in other contexts.
In this respect, the Applicant’s counsel relied on the judgment of the Full Court in BDS20 at paragraph 118, where hypothetical examples of the injustice that could be occasioned by a construction of s.501CA(3)(b) wherein a visa cancellation notice issued only once was considered. There the Full Court referred to the hypothetical circumstance where, unbeknownst to the Minister, the person whose visa was cancelled was at the time of receipt of the invitation totally incapacitated from acting on it for medical reasons among the possibility of other examples of unfairness in giving a notice to someone incapable of receiving it in any meaningful way.
The Respondent said that this ground must fail including because, when read in its proper statutory context, the Minister’s duty is to perform the act of delivering written notice of a visa cancellation decision as soon as that is feasible. The provision at s.501CA(3) being concerned only with the method or manner of delivery rather than the content of the notice itself. The Respondent argued it is not relevant whether the recipient understands the content of the notice.
Further, that it would be wrong to rely on BDS20 because the paragraph on which the Applicant’s counsel placed heavy reliance was plainly obiter and was delivered before the High Court of Australia decision in EFX17.
Consideration of Ground 1
A s.501CA(3) visa cancellation notice can only issue once and cannot be reissued: BDS20. It is this problem that the grounds of the substantive application in this matter were plainly directed to overcome.
By this ground 1, the Court was asked to resolve a question of statutory construction. For the following reasons, I prefer the construction of s.501CA(3) for which the Respondent contended.
The provision in question is extracted in full at paragraph 31 above.
The Applicant’s counsel referred to authorities wherein the word “practicable” has been interpreted to mean “effective” or “useful” whereas the Respondent contended the orthodox meaning is “feasible”: Uebergang v Australian Wheat Board (1980) 145 CLR 266 at 305 discussed in BDS20 at [53] cf. Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82 at [116]. Any of those meanings may be correct. However, it is necessary to have regard to the surrounding text, the statutory context and purpose in understanding the true meaning of what is “practicable” for purposes of s.501CA(3) of the Act.
The word “practicable” is but one part of the prefacing text to sub-paragraph (3): “As soon as practicable after making the original decision, the Minister must: […]”.
There are two components to the phrase “as soon as practicable”, as identified in Stubbings v The Queen [2023] NSWCCA 69 at [48], which observations equally apply in the present case:
First, the words “as soon as” supply a temporal limitation. Second, the word “practicable” identifies that which is able to be put into practice and which can be effected or accomplished.
Those prefacing words introduce a list of mandatory actions the Minister is to take (at sub-paragraphs (3)(a) and (b)) which require the Minister to give the person subject of a decision to cancel a visa a written notice and particulars and to invite the person to make representations.
In this way, it may be seen that the term “practicable” is part of the temporal condition or limitation on the Minister’s obligation at ss.501CA(3)(a) and (b).
Such conclusion is consistent with the High Court of Australia’s findings about the statutory context and purpose of the provision at s.501CA(3) in EFX17. That was a case involving an applicant whose visa was cancelled under s.501(CA)(3) due to a sentence of imprisonment and whose capacity was affected by circumstances of literacy, capacity to understand English, mental capacity and health and available facilities in custody. The High Court held that the capacity of a person to understand a s.501CA(3) visa cancellation notice was not relevant to whether the written notice and particulars had been given or whether the invitation to make representations had been made.
In EFX17, the reasons resolved the meaning of the Minister’s obligations (to “give” and “invite”) and there was no specific analysis of the word “practicable” as it appears in the prefacing phrase “as soon as practicable”. However, the analysis of the statutory context remains apt in the present case. Therein, the Court held, at [25]:
The statutory context, including other provisions of the Migration Act, reinforces the conclusions that in s 501CA(3) the verbs “give” and “invite” bear their ordinary meaning and that the expression “the way that the Minister considers appropriate in the circumstances” concerns only the method of delivery or invitation rather than the substantive content.
In reaching this conclusion, the Court adopted the reasoning in WACBv Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 190 (WACB) which considered the meaning of “give” in a notification provision. There the plurality considered a similar provision and noted that the language of the Act does not distinguish between classes of holders of cancelled visas depending on degree of literacy and intellect: WACB at 201, cited in EFX17 at [24].
Further support for the Respondent’s proposed construction may be drawn from the comparative example outlined in EFX17. Where the legislature intended the Minister to give particulars and invite comment in such a way as an applicant can understand why it is relevant to consideration of the application, it has expressly said so: see s.57(2)(b) and EFX17 at [27].
In my view, the reasoning at paragraph 118 of BDS20 is not persuasive in the manner for which the Applicant’s case contends because that case was about a different issue (whether a second cancellation notice could be issued, as distinct from the issue before this Court and that which the Court considered in EFX17) and in any event those reasons go no further than consideration of a hypothetical circumstance which the Full Court expressly declined to resolve. In any event, the reasoning in BDS20 recognises that each case turns on its own particular circumstances.
It follows that the better view is that the prefacing phrase “as soon as practicable” is properly construed as a condition or limitation on the time by which the Minister is to deliver written notice of a visa cancellation decision and invite representations and does not extend beyond physical delivery to a requirement that the Minister ensure or consider the person’s understanding or capacity to understand. The Minister’s duty is to perform the act of delivering written notice of a visa cancellation and invitation to make representations as soon as that is practicable, feasible or useful in the sense that there is an available method of delivery - not whether the recipient understands its contents.
On this construction, the question of when the assessment of the Applicant’s capacity is to be conducted does not arise. However, for completeness, I would have difficulty in accepting the submission of counsel for the Applicant regarding an objective assessment or an objective assessment to be conducted at the time of the judicial review application hearing. Such approach would not accord with the orthodox approach by which practicability is assessed from the viewpoint of the obligation holder: see Martin v Commonwealth of Australia (1975) 7 ACTR 1, 3 (Joske J), cited with approval in R v HC (2017) 325 FLR 59 at [67]. Further, it could attract delay in the Minister’s decision to issue a visa cancellation notice which would not rest easily with the legislature’s expressed intention to ensure the Government can move quickly to take action to remove non-citizens who pose a risk to the Australian community: see Second Reading Speech: Australia, House of Representatives, Parliamentary Debates (Hansard), 24 September 2014 at 10327, cited in EFX17 at [28].
Accordingly, this first ground does not succeed.
SECOND GROUND
The respective contentions
By the second ground of review, on behalf of the Applicant it was submitted that an alternative reason as to why the construction for which the Respondent contended (and the construction which is preferred, as reasoned above) should be avoided. It was said to result in a practical unfairness to the Applicant and in this way constituted a denial of procedural fairness. Specifically, that the timing and manner of purported delivery of the Notice to the Applicant was procedurally unfair for a person with his disability. The practical injustice said to be occasioned upon the Applicant as a result was the denial of an opportunity to make representations about revocation of the Notice and the associated consequences.
The Applicant’s counsel contended that, notwithstanding that the Act does not provide for any competency requirement, in cases involving concerns about a person’s competency or fitness to engage in the process, the validity of the process is to be analysed through the lens of requirements of procedural fairness: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [45]. It was also said that there is no need to show fault on the part of the decision maker to establish procedural unfairness, relying on Minister for Immigration and Multicultural Affairs vSZFDE (2006) FCAFC 142 at [100].
The Respondent did not entirely reject the suggestion that a procedural fairness purpose applies in the circumstances but nonetheless maintained that the statutory context does not permit the import of any obligation to ensure the non-citizen understands the content of a visa cancellation notice into the requirement at s.501CA(3) of the Act. The Respondent contended that EFX17 said that simply complying with the terms of s.501CA(3) would not amount to an empty gesture of a kind contemplated in Li: EFX17 at [29], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [61].
Consideration of Ground 2
The Applicant was not appointed a guardian until after the Notice was given to him and the time for making such representations had expired. He did not make representations to the Minister in response to the Notice within the prescribed timeframe or at all. The making of representations within the prescribed timeframe is a necessary step for revocation of the Notice. It follows that the consequences for the Applicant are grave in that, having completed his criminal detention, he has become liable to removal (subject to the outcome of this review and any related litigation).
The Minister’s original decision to cancel the Applicant’s visa is one to which the rules of natural justice do not apply: s.501(5) of the Act. This is a deliberate exclusion to enable swift action where prompt removal of a person is required, in which case the “niceties” of natural justice and fair procedure are dispensed with: Re Patterson; Ex parte Taylor (2001) 207 CLR at [327]; see also EFX17 at [30].
There is a real question as to whether procedural fairness attends upon the obligation at s.501CA(3) at all: Aciek v Minister for Immigration [2017] FCCA 3237 [39]-[44] (Manousaridis J).
To the extent that procedural fairness does attend upon the obligation at s.501CA(3), the Applicant asked the Court to find that the Minister was obliged to wait until a guardian was appointed for the Applicant before taking the steps at ss.501CA(3)(a) and (b). The obvious difficulty with this proposition is that the Minister could not have had any knowledge of the VCAT guardianship order at the time of the Minister’s s.501(3) cancellation decision (24 November 2021) or at the time of hand delivery of the s.501CA(3) Notice (1 December 2021) – because application for the VCAT order was first made some weeks later (23 December 2021) and the guardianship order not made at all until 11 January 2022.
There will be a spectrum of cases where the knowledge of the decision maker and the conduct of the adversely affected party may indicate whether there has been a lack of procedural fairness: DZAFF v Minister for Immigration and Border Protection [2015] FCA 544 per Mansfield J at [37], citing Minister forImmigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276 at [54]. The Full Court has acknowledged that, even where a decision is based on material or information that unbeknownst to the decision maker was erroneous or incorrect, that may not give rise to a jurisdictional error even though the decision may be objectively unfair: Minister for Immigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276 (George) at [52]. The facts in George involved an erroneous belief on the part of the Minister that a letter alerting the applicant of the Minister’s intention to cancel the visa was given to the non-citizen which was untrue because it had been sent to an incorrect postal address.
The unfortunate circumstances of the present case are different to that in George because here the Applicant was in fact notified of the Notice when it was handed to him, the Minister having taken steps to overcome the problems with usual methods of delivery (the Applicant’s incarceration) that otherwise might have affected the discharge of the obligation. Further, in the present case, the Minister did not proceed on an erroneous or incorrect assumption as to the appropriateness of delivering the Notice to the Applicant by handing it to him at the correctional centre at the time that it did. The departmental file contained a record of the sentences of the Magistrates’ Court (which jurisdiction has an ability to adjust a sentence to accommodate mental health). By the submissions, it was understood that the Applicant was represented before the Magistrates’ Court and the Court had seen fit to order the sentences just weeks prior to the visa cancellation decision and delivery of the Notice. The notations on the sentence records regarding the Applicant’s apparent incoherence, when viewed in context of the Magistrates’ Court having delivered the sentence without requiring a Court assessment order under s.91 of the Sentencing Act 1991 (Vic), would not of itself indicate the Minister ought to have known that the Applicant had such incapacity at the time as to require a litigation guardian. Rather, the Magistrates’ Court notations appear to be directed at safety considerations. In my view, the observations of the corrections officer that the Applicant found the subsequent questionnaire confusing are unsurprising and similarly not reflective of an incapacity that would render the Applicant unable to receive or act on the Notice.
There is nothing before this Court to indicate that the guardianship order was subject of challenge or in any way lacking in merit or credibility. In my view this is a rare circumstance where the outcome for the Applicant would appear objectively unfair, 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 2021 and the period in which the representations were to be made. However, it remains the fact that the Applicant had not yet applied for the VCAT guardianship order and the departmental file did not contain sufficient indication as to such incapacity that the Notice could be invalidated or ineffective on account. In my view, the Minister acted on a reasonable assumption of the Applicant’s capacity at the relevant times and the Applicant was in truth afforded the right to make representations by the giving of the Notice as s.501CA(3) requires.
For completeness, I did not understand it to be seriously pressed but do not discern any procedural unfairness in the delivery of the Notice by hand given the Applicant was incarcerated at the time.
THIRD GROUND
The respective contentions
The third ground was argued in the alternative.
It was submitted for the Applicant that the Minister acted irrationally, illogically or legally unreasonably (in the senses described in Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [3]-[5]) in determining that is was appropriate and practicable to deliver the Notice to the Applicant in the circumstances. The Applicant’s case also contended that the High Court of Australia, by their reasoning in EFX17, left open the possibility that there might be 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”: see EFX17 at [21].
In support of this ground, the Applicant’s counsel asked the Court to find that the Minister had actual or constructive knowledge of the Applicant’s incapacity. In this respect, counsel relied on the sentencing orders related to the October 2021 Convictions and the corrections centre email of 9 November 2021. By the sentencing orders alone, the Applicant’s counsel contended that the Minister was on notice that the Applicant was likely incoherent and at risk of psychiatric illness as to render it reasonable to inquire about his capacity and/or whether the Notice be given to a more appropriate person.
The Respondent submitted that the Minister did not act unreasonably in delivering the Notice by hand to the Applicant, given the particular knowledge held by the Minister at the time the Notice was delivered. The Minister was not actually or constructively aware of the Applicant’s mental incapacity and therefore did not act legally unreasonably in the method of notification. Further, that EFX17 was not proposition for a finding of legal unreasonableness in the present case because the concept of reasonableness is judged by the particular knowledge of the Minister at the relevant time.
Consideration of Ground 3
An illogical or irrational finding may constitute a jurisdictional error. However, mere disagreement with the decision-maker’s findings is not enough. The decision must be affected by extreme illogicality or irrationality: SZMDS v Minister for Immigration and Citizenship (2010) 240 CLR 611 (SZMDS) at 647-648.
In Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3 at [31]-[35] it was held that:
The characterisation of a decision (or a state of satisfaction) as legally unreasonable because of illogicality or irrationality is not easily made: Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 551 [11], 564 [52], and 586 [135]; Minister for Home Affairs v DUA16 [2020] HCA 46; 385 ALR 212 at 220 [26]; SZMDS 240 CLR at 647–650 [130]–[135]; CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at 517–518 [60]; and Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195; 395 ALR 57 at 88 [142].
[…]
Ultimately, the question is whether the satisfaction of the relevant state of affairs or matter was irrational, illogical or not based on findings or inferences of fact supported by logical grounds: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 207 ALR 12 at 20–21 [38]; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 at 71 [52] and 98 [173], such that it cannot be said to be possible for the conclusion to be made or the satisfaction reached logically or rationally on the available material. It will then satisfy the characterisation of unjust, arbitrary or capricious.
The irrational finding must be either in relation to or material to the decision-maker’s conclusion regarding the statutory criteria: SZMDS at 648; ARG15 v Minister for Immigration and Border Protection [2016] FCAFC 174 at [47].
In order to establish irrationality, illogicality and/or legal unreasonableness, the Applicant’s counsel sought a finding that the Minister had actual or constructive knowledge that the Applicant was likely incoherent and at risk of psychiatric illness. By the way in which this ground was argued the Applicant may be understood to properly accept that, at the time the Notice was given, he had not been assessed as suffering from psychiatric illness nor had any guardianship order been made or sought. Indeed, the relevant psychiatric assessments were undertaken and the guardianship application was first made some weeks after the Notice was given.
The assessment is properly undertaken with regard to the facts, information and knowledge – actual or constructive – at the time the Notice was given.
The authorities to which this Court was taken, namely that in EFX17, describe the statutory context as relevant and not intended to require the Minister to perform searches about and assess the person’s capacity in each case.
I agree that it is at least conceivable that an applicant could establish that a unique circumstance was within the knowledge of the Minister as would render the giving of a s.501CA(3) notice legally unreasonable. For example, were the applicant in a coma at the time and the Minister was aware or constructively aware of that fact. However I am not persuaded that this is such a case.
In the absence of psychiatric assessment or guardianship order at the time the Notice was given, there was nothing conclusive about the Applicant’s capacity nor could such assessment have reasonably been within the Minister’s knowledge at the time it gave the Notice to the Applicant.
In my opinion, the notations on the sentencing orders were insufficient to underscore such finding against the apparently undisputed context that the Applicant was represented at the time of sentencing and no question of such incapacity as to be incapable of legal decision-making was raised or considered by that Court to be necessary as at 21 October 2021.
The correctional officer’s email of 9 November 2021 must also be understood in its proper context. That is, it reflected the correctional officer’s engagement with the Applicant about a questionnaire which questions mostly did not relate to the Applicant’s circumstances and were understandably confusing.
At the relevant times, the Minister was aware that the Applicant was incarcerated and took steps to give the Notice by arranging hand delivery at the corrections centre and confirmation of receipt which was signed by the Applicant and subsequently provided to the Minister via the corrections centre. That method of effecting delivery was consistent with the range of options provided in regulation 2.55.
I do not consider the particular circumstances of this case to support a finding that the giving of the Notice or the time at which it was given was irrational, illogical and/or unreasonable.
This third ground does not succeed.
CONCLUSION – SUBSTANTIVE APPLICATION (MERIT)
For the above reasons, the substantive application must be dismissed. I will order accordingly and as to costs in the scale amount.
I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 7 June 2023
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