BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs

The High Court of Australia heard an appeal concerning the validity of a visa cancellation notification. The appellant, BIF23, had his visa mandatorily cancelled under s 501(3A) of the *Migration Act 1958* (Cth) due to a substantial criminal record. Subsequently, the Minister for Immigration, Citizenship and Multicultural Affairs, through a delegate, invited BIF23 to make representations for the revocation of this cancellation. The central dispute revolved around whether this invitation was validly issued, given BIF23's lack of legal capacity at the time he received the notification.

The primary legal issues before the High Court were whether the notification and invitation to make representations under s 501CA(3) of the *Migration Act* were validly given to BIF23, and consequently, whether the Minister had discharged their duty under that section at the date of notification. This involved determining whether BIF23's lack of legal capacity, due to his psychiatric condition and treatment, rendered the notification ineffective and whether the Minister's delegate had acted appropriately in the circumstances when issuing the invitation.

The High Court reasoned that the purpose of s 501CA(3) is to provide an opportunity for a person whose visa has been cancelled to present their case for revocation. This opportunity is rendered meaningless if the person lacks the legal capacity to understand the notification or to make representations. The Court noted that while s 501(3A) mandates cancellation for a substantial criminal record, other provisions within s 501, such as s 501(7)(e) and (f), specifically address individuals who lack legal capacity in relation to their offending, indicating a legislative awareness of such circumstances. The Court concluded that the notification and invitation were not validly given because BIF23 lacked the requisite legal capacity to engage with the process at the time he received it.

The High Court allowed the appeal with costs. It set aside the orders of the Full Court of the Federal Court and ordered that a declaration issue requiring the respondent to give BIF23, or his guardian, a written notice and invitation under s 501CA(3) of the *Migration Act*. Furthermore, the Court ordered that the purported notice and invitation issued to BIF23 on 1 December 2021 be quashed by a writ of certiorari, and a writ of mandamus be issued directing the respondent to provide a valid notice and invitation to BIF23, by his litigation guardian.